The Democratic Dilemma of the International Criminal Court

Abstract

• 'Crimes of the character of genocide, systematic war crimes, and crimes against humanity rarely are committed without the authorship or collusion of governments. The crimes of the Nazis, the Khmer Rouge, the 1994 “interim government” of Rwanda, factions in the former Yugoslavia, and countless others were committed pursuant to state policy and authority. This fact poses a problem in the enforcement of the international law prohibiting those extraordinary crimes that does not arise in most other areas of criminal law enforcement. A government that is responsible for the crimes is unlikely to be efficacious in their prosecution. For that reason, the law in this field is unlikely to be enforced effectively through the usual mechanisms of domestic law enforcement. This circumstance creates a fundamental problem for international criminal jurisdiction: how to design a jurisdictional structure that circumvents obstruction by perpetrator regimes while maintaining legitimate foundations for the exercise of judicial power.' (591) • 'The jurisdictional structure of the ICC poses a tension between two sorts of accountability: the legal accountability of the perpetrators of international crimes, on the one hand, and the democratic accountability of the ICC itself, on the other. The ICC Treaty solves the problem of colluding regimes’ shielding perpetrators from justice by providing that, under some conditions, the ICC may exercise jurisdiction over defendants even if their states of nationality are not parties to the Treaty and have not otherwise consented to jurisdiction. Within this solution, as we shall see, lies a deep democratic dilemma.' (592) • 'What is ultimately at stake, beneath the heated controversy concerning ICC jurisdiction over non-party nationals,8 is a tension embodied in the Rome Treaty between the human rights embodied in humanitarian law (rights to freedom from genocide, war crimes, and crimes against humanity) and the human right to democratic governance.9' (593) • 'But the ICC is not merely the delegee of the territorial state’s authority; the ICC is indeed a truly supra-national authority. Even while the ICC’s jurisdiction arises from the delegation of jurisdiction by the states parties, those states parties also delegate to the ICC substantial control over the exercise of that jurisdiction—such that the ICC is empowered to operate as a truly separate and distinct international entity. This is manifested in a variety of ways.' (594) • 'First, under complementarity, the ICC is the ultimate judge of whether the territorial state has genuinely exercised jurisdiction over a case.' (594) • 'A second manifestation of the truly supra-national nature of the ICC’s authority is found in its governance structure. The ICC is loosely governed by its Assembly of States Parties (composed of a representative from each state party)... The Assembly of States Parties governs by majority (or super-majority) rule. Therefore, in any particular prosecution, the ICC may be applying rules and law that were decided upon by a majority or super-majority of the ICC’s member states, over the dissenting vote of the state on whose territory the particular crimes occurred.' (595) • 'Third, the ICC will have influence and law-making authority beyond that of the territorial state or, for that matter, that of any state.' (595) • 'A supra-national judicial authority has been created, but there has been virtually no examination of its democratic legitimacy. In contrast to the case of the World Trade Organization (WTO), for instance, where a so-called “democratic deficit” has been a focus of debate, in the case of the ICC, a powerful new international institution has been created with virtually no discussion of the democratic features of this new power.' (596) 'For nationals of states that are parties to the ICC treaty, their representation comes through their own governments’ consent to the Treaty, and continues through their governments’ participation in the Assembly of States Parties.11' (597) But elsewhere: 'the ICC’s claim to democratic legitimacy breaks down. There is no democratic linkage between the ICC and those non-party nationals over whom it would exercise authority.' (597) • 'Insofar as the states parties govern the court through voting in the Assembly of States Parties, the ICC involves a form of governance by majority rule. The offer to non-party states cannot be: you enter into this new, majority-rule form of decision making with us—or, if you do not, then we will simply govern you without your consent or representation. A system based on the consent of the governed requires that consent be meaningful, that is, that it be optional, that there be the alternative of not consenting.' (599)