Jacques Vergès argues that the International Criminal Court is unconstitutional, applies statutes retrospectively and has unfair procedures. In short, it discredits justice itself

Before asking whether some heads of state are deliberately violating international law, it would be useful to ask ourselves about the legality and, even more, the legitimacy of the institutions that are expected to judge them.

I would like to argue that the International Criminal Court (ICC), which has allocated itself this role, is not only not fit to do so but, moreover, is contributing to the institutionalization of the international chaos against which it claims to be making a stand.

First, the United Nations (UN) Charter in no way authorized the Security Council to institute a jurisdiction such as the ICC. Second, even if we agree that its institution was legal, it is not competent to judge events that occurred before its creation. Third, the way in which it operates is, in several fundamental aspects, incompatible with the general principles of procedure recognized by all states and sanctioned by the international instruments relating to human rights.

Unconstitutional
The UN has been governed by international law since its creation in 1945. But it also possesses an internal order, a coherent body of legal rules that govern its operation, the relationships between its different organs, and between these and member-states.

In this context, Article 7 of the UN Charter authorizes the creation of “such subsidiary organs” as “may be found to be necessary” to maintain or re-establish international peace and security. The distinction between principal and subsidiary organs is fundamental: the principal organs are established by the founding treaty; the subsidiaries by the principal organs to help them to accomplish their missions.

Recourse to the creation of these organs is frequent in international organizations: they may comprise independent experts or be of an intergovernmental nature. But to ensure that these ad hoc bodies do not modify the existing institutional equilibrium, the International Court of Justice has laid down a common-sense limit since July 13, 1954: “The principal organ shall not allow the subsidiary body more areas of jurisdiction than it has itself”.

Now the Security Council, which has full powers to maintain peace, does not, as the principal political organ of the UN, have legal jurisdiction. As early as 1950, in his commentary on the Charter, legal philosopher Hans Kelsen underlined that the Security Council is not a judicial body, on the one hand, because “its members are not independent”, and on the other hand because the aim of its preventive actions “is not to re-establish justice, but to re-establish or maintain peace, which is not necessarily identical to justice”.

Since the functions of the Security Council are not judicial, the subsidiary body “necessary to the exercise of its functions” would not be judicial, except in its capacity to modify the jurisdictions of the Security Council by this oblique route. The creation of an ad hoc criminal court by a resolution of the Security Council is, therefore, unconstitutional because it does not conform to the Charter.

“Grandfathering” – not always cuddly
Let us accept, for the purposes of argument, that the UN Charter authorized the Security Council to set up a criminal jurisdiction such as the ICC for the former Yugoslavia. Could the Council, with respect to the principles of international public law and to the international instruments relating to human rights, attribute jurisdiction to this Court to judge events that occurred before its founding resolution came into force?

For this, the UN Charter would have to denounce the principle that statutes should not apply retrospectively – expressed in the adage “Nullum crimen sine lege” (No crime without law) – which it does not. On the contrary, this principle has taken on the value of a convention since it was adopted in Article 15 of the International Covenant on Civil and Political Rights in 1966. The provisions of this covenant are more precise and restrictive than those of the Universal Declaration of December 10, 1948.

Article 15 declares that “No-one shall be held guilty of any criminal offence on account of any act or omission, which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the criminal offence that was committed”.

This principle applies to international crimes as specified in the 1998 UN Convention which established the status of the International Criminal Court. Articles 22, 23 and 24 of the Rome Statute of the ICC are specifically entitled “Nullum crimen sine lege” (“No crime without law”), “Nulla poena sine lege” (“No sentence without law”) and “Non-retroactivity ratione personae”. Therefore, there is no doubt that in the minds of the authors of this convention this is not an innovation, but the recognition of a pre-existing principle.

Now, not content with increasing international chaos by violating the principle of the non-retrospectiveness of criminal law, the ICC has deliberately breached Article 2 of the UN Charter by arresting Slobodan Milosevic and organizing his detention in another country, in this case the Netherlands.

Article 2 of the Charter, in fact, declares that the UN is founded on the “principle of the sovereign equality” of all its members, and that it must not intervene in “matters which are essentially within the domestic jurisdiction of any state”. The principle of “essential national jurisdiction” shall not, of course, constitute an obstacle to the application of measures of enforcement, as referred to in Chapter VII. Again it is important that the aforementioned enforcement measures do not breach the fundamental internal rules – here the constitutional rules – of the state concerned.

Yugoslavia’s constitution invests the federal organs alone with international jurisdiction. The cooperation with the ICC of the single state of Serbia, which is devoid of international jurisdiction, thus invalidates the arrest and detention of Yugoslav citizens. So the breach of internal constitutional rules should have appeared “objectively evident” to the Netherlands – an external state acting on behalf of the court.

Bad rules
Even if we accept the ICC’s existence and assume that its retrospective jurisdiction has been acquired, we still need to cast doubts on its method of operation.

The adoption of procedural rules constitutes an initial guarantee for anyone under a court’s jurisdiction. The intense debates around procedural reform in any country show that the legitimacy of a criminal justice system is judged by its principles and rules of procedure.

Article 15 of the statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) provides that “the judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters”.

This is a case of “delegation” of competence that goes against the best-established principles of criminal procedure. For it is the law, and the law alone, that determines the organs charged with judging offenders, their competence and the procedure on the basis of which these jurisdictions can deliver a decision to acquit or to sentence.

To be governed by the rules and machinery pre-established by an authority other than the one that applies them is the first sign of a fair trial, a now almost universal concept linked to the international instruments of human rights.

Article 51 of the Rome Statute of the International Criminal Court refers to this principle of fair procedure. It makes provision for the adoption and modification of the rules of procedure and evidence by a two-thirds majority of the Assembly of Member States. So it is solely through the failure of the international legislator that the judges find themselves invested with the power to establish rules of procedure.

Another curious feature of the ICC that is contrary to basic fairness between the parties is that certain witnesses are allowed to appear masked before the Court, allegedly for their own protection. In domestic law, there are often two categories of witnesses. There are ordinary witnesses who have been present at events and can recount them, and there are “special” witnesses, such as undercover agents, police informers and other direct auxiliaries of justice. In the case of the latter, their protection is deemed to be of an institutional nature, tending to guarantee further services on their part.

In the case of ICTY, the concept of a witness is that of an ordinary witness. Because he or she cannot claim for damages as a private individual, a victim will be heard in his or her capacity as a “witness”. The non-disclosure of a person’s identity is a direct breach of the principle of the equality of treatment of the parties in a criminal trial, and a prerogative that only the prosecution can use in the person of the director of public prosecutions.

Justice must be seen to be done
Increasing the numbers of anonymous witnesses, delaying the disclosure of their identity and thus depriving the accused of their legitimate cross-examination, using technical procedures to the detriment of the accused – while they are designed as measures of protection against third parties – all these are breaches of the fundamental principles of human rights as established by the international instruments and courts, beginning with the decisions of the European Court of Human Rights.

Finally, the way the ICC is funded seems to go against Article 17 of the UN Charter. On September 14, 1993, the General Assembly emphasized that Article 17 confers on it “the role of the organ responsible for examining and approving the budget of the organization and for spreading the costs across the Member States” and declared “concern that advice given to the Security Council by the Secretariat on the nature of the financing of the International Tribunal does not respect the role of the General Assembly as set out in Article 17 of the Charter”.

Indeed, the Security Council was in favour of voluntary partial funding of the activities of the Court by states or private parties. However, when consulted on UN expenditure in 1962, the International Court of Justice refused to make a distinction between the organization’s expenses.

This method of voluntary funding is even more controversial when it involves an activity presented as a question of jurisdiction. How can we entrust justice to a body that is funded in part by state or private “sponsors” whose militancy could weigh heavily on the court?

Far from contributing to the strengthening of international order, the ICC discredits justice itself. It is the first court to combine modern totalitarian justice with the archaic nature of ancient private justice systems. How can supported magistrates, applying a procedure outside the law, inspire the slightest respect and, furthermore, the slightest fear in the people they are expected to judge?

Jacques Vergès
Jacques Vergès is a French defence lawyer whose clients have included Algerian guerrillas fighting for independence from France, Palestinian activists, Nazi war criminal Klaus Barbie, terrorist Ramírez Sánchez (“Carlos the Jackal”) and Holocaust denier Roger Garaudy. He is one of the lawyers organizing the defence of former Iraqi head of state Saddam Hussein