RICE University

POLI 375 Spring 2011

Policy Recommendation Memo

Anastazija Ristovska
Rice Class of 2013
21 April 2011

Policy Team Recommendation. Policy Team: International Courts

Discussion area: Prosecuting Nationals of States Non-Signatories to the
Rome Statute in front of the International Criminal Court

POLICY RECOMMENDATION

Background
The ICC is a permanent tribunal that prosecutes individuals for crimes against
humanity, genocide, war crimes and crimes of aggression. The Court was officially founded
on 1 July 2002 when its founding treaty, the Rome Statute of the International Criminal
Court, entered into force. The official seat of the Court is in The Hague, Netherlands, but the
proceedings are not bound to any particular location. There are 144 states signatories to the
Rome Statute and 34 states have signed, but not yet ratified the treaty. The United States
signed but didnt ratify, and then withdrew the signature, Russia has signed but not yet
ratified, and China and India have neither signed nor ratified the Statute. The ICC has so far
indicted seventeen people in investigations in Northern Uganda, the Democratic Republic of
the Congo, the Central African Republic, Darfur-Sudan, the Republic of Kenya, and Libya.
The Court holds jurisdiction over crimes committed by individuals who claim
citizenship in member states, as well as over crimes committed on member states territory. If
a crime is committed in a non-member state or by a non-member states citizen, then the state
has the authority to accept or reject the jurisdiction of the Court. Cases brought before the
ICC are handled by one of the eighteen elected judges. ICC officials are elected by
participating states.
Recommendation
The United Nations Security Council should form an independent International Law
Expertise Team, selected from countries with highest democratic and human development
indexes, that will form recommendations of referring individual cases of crimes against
humanity to the International Criminal Court against nationals of all UN member countries,
both those that are and those that arent signatories to the Rome Statute.
In order to bring diversification of cultures and accommodating all the consequent
differing definitions of democracy, international law experts from countries of different
dominant religious background with an excellent human rights record can be included,
provided that all political bias had been shed early on.
The team should be given the authority of assessing cases of terrorism as crimes
against humanity and innocent victims, as well as examining cases of truce violations on
behalf of terrorist organizations that can be viewed as war crimes and infringements of
international warfare treaties. The team should also be charged with monitoring the use,
threat of use, or proliferation, of weapons of mass destruction, as well as bringing attention to
cases of illegal drug trafficking and the war on drugs.

Justification
The fact that the Court has jurisdiction to arrest, prosecute and indict nationals of
countries that havent signed and ratified the Rome Statute, can be viewed as interference in
state sovereignty (Cryer). The United States never ratified and eventually pulled out its
signature from the Treaty, because it believed its membership in the Court can be used as a
political tool by enemies against U.S. sovereignty, indicting U.S. nationals for alleged crimes
committed in military operations and UN peace-keeping missions in, say, Bosnia, or
Afghanistan. For these reasons this policy recommendation memo does not advise the U.S. to
join the ICC. Rather, the memo builds upon the argument that ICC is just another step
towards global governance and enforcement of international law, proclaiming the interests of
humanity and the principle that perpetrators of the most serious crimes against humanity
should be held accountable. As such, the court jurisdiction should be expanded even over
non-member countries, but only under the auspices, warrant and imprimatur of a neutral UN
International Law Expertise Team, all with the purpose of making a greater step forward to
international justice. The policy memo gives democracy precedence over sovereignty,
exalting the value of human life above the value of maintaining state sovereignty, as well as
over keeping individuals that perpetrate crimes against humanity (or threaten to do so) in
government offices. State governments are agents of the citizens of their country and should
be regarded as exalted servants to their nation in a democratic hierarchical fashion. Whenever
the primary role of incumbents is disregarded and they are allowed to commit atrocities
against their own citizens, we face a failure in the democracy of that country. Several types of
individuals could be theoretically referred to the Court: ex-officials or incumbent government
officials, military personnel, ordinary citizens, terrorists, drug traffickers. Each type of
individual has his own specificity, for example ex-officials are sometimes hard to arrest,
prosecuting incumbent government officials and military personnel is an explicit interference
in state sovereignty, terrorism is hard to define within international law, and prosecuting drug
traffickers can be burdensome to the budget of the Court.
State Sovereignty vs. Democracy
Historically viewed, state sovereignty was established to end years of bloodshed,
nevertheless, the concept of state sovereignty and non-interference failed to bring peace and
collective security to the world, as was witnessed in the long years of wars and bloodshed up
between the signing of the Peace of Westphalia and the end of World War II. It is
indisputable that state sovereignty was a significant step forward in bringing about world
peace in an age of wide-spread warfare, but it wasnt a self-sufficient step. It had to be
accompanied by democracy. Counting the number of lives that have been saved and the
number of wars that have been prevented by employing the concept of state sovereignty
versus the number of lives saved and wars prevented by embracing democracy, as viewed
from the last six decades since it has been employed by most states, democracy vastly
prevails. According to factual statistical data, as well as several theories, democratic countries
tend to protect the lives of all of their citizens in their own countries, as well as the lives of
citizens in fellow democratic countries because of the decreased likelihood of two states that
embrace the same democratic values to engage in a war. Nevertheless, it is more often
witnessed that non-democratic sovereign states are more likely to engage in armed conflict
with each other, as well as with democratic sovereign states. There is the dilemma of whether
to protect or attack the state sovereignty of non-democratic countries when their leaders
commit crimes against humanity by attacking their own citizens, commit war crimes, or
violate human rights and international law in other ways. In this case it is crucial to determine
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which value is to be sacrificed for the sake of the other, sovereignty or democracy. Since
democracy is the value that promises to save more lives than sovereignty, international justice
would be satisfied if non-democratic states that commit heavy atrocities against their own
citizens be temporarily taken away part of their sovereignty by prosecuting their criminal
leaders, no matter whether these states are parties to the Rome Statute or not, for the sake of
promoting and perhaps instituting democracy within those states from the outside. In an era
when democracy is the only game in town, its price in terms of human lives being higher than
that of state sovereignty, it is necessary for democracy to be exalted even at the cost of
neglecting sovereignty. Therefore it is necessary to form the independent, neutral UN body of
international law experts, and give it freedom in front of and influence over the UN Security
Council (Oberg) in proposing and making the decisions of referring cases to the International
Criminal Court, whether these referrals are charges against incumbent state leaders, or
military personnel. If properly implemented, the method will allow for shedding most
political bias, as well as accusations of political bias, in prosecuting individuals in front of the
ICC.
War on Illegal Drugs Trafficking
The United States spends US$26 billion a year on the war on drugs, with one primary
source of drug trafficking: Colombia. Colombias government is a U.S. ally and trade partner;
however, guerrilla factions and paramilitary organizations that have plagued the country for
more than forty years are taking a toll on the countrys domestic security and the rule of
order. Colombia is worlds leader in cocaine production, and is the single major supplier of
cocaine and heroin to the United States black market. Colombia is also a Latin American
leader in oil production from its Saudi Arauca oil region, and this industry has also been
plagued by guerrilla terrorism. The U.S. has deployed military units on Colombian soil in a
joint military offensive with the Colombian forces against the dissidents. The U.S. has
independently engaged in the war against drugs. It is possible that some of the funds the U.S.
and other countries spend on domestic illegal drug trafficking warfare can be jointly moved
to an international fund under UN authority and the advised international law expertise team
monitoring, with the purpose of fostering international collaboration in this fight, especially
since much of the drug trade spreads across many borders, making it hard for a single state to
control drug trafficking across its own borders if it lacks the support of other countries listed
on the illegal drugs trafficking itinerary. Therefore, internationalizing the war on illegal
drugs, as well as the joining the forces and funds states already use in this warfare, will
facilitate what many individual states have been trying to do on their own.
War on Terrorism
The Bush administration advocated that the war on terrorism should be
internationalized by primarily granting the U.S. full immunity from the ICC in The Hague in
the efforts to fight terror. Independently from this debate, the UN International Law Experts
should be charged with meticulously defining what terrorism in terms of rules of warfare,
state sovereignty, and human rights. Some experts assert that terrorism cannot be fought by
finding the main perpetrators and detaining them, because once a leader is arrested another
easily takes his place, or even worse, once a leader is arrested the terrorist cell under his
control burst into several other individual cells of similar capacity. Therefore, one of the most
efficient ways of fighting terrorism is combating the ideology that is fueling it, and calming
down the terror fever that has plagued those areas where terror originates from. Instead of
legally prosecuting terrorists, a task that would surely turn into an unending vicious circle
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costing billions, the team should be given the authority of advising the UN Security Council
and the International Criminal Court on prosecuting the religious authorities that are
responsible for the spread of radical ideology. These religious authorities can be easily
tracked down and tried at minimal costs at the charges of inciting crimes against humanity.
This might be seen as interference with the freedom of speech, however at the same time it
can be viewed as hate speech which is equally offensive under most law systems.
Major team discussion points that contributed to Recommendation
Recent world events have brought to light the possibility of political bias in
distributing international justice in areas where the role of international law is not clearly
defined. The formation of the UN Security Council international law expertise team will help
move a step towards full democratization of international institutions and future global
governance. Additionally, it will act as a global international justice monitoring service that
determines where injustice and violation of international law in terms of crimes against
humanity has happened, urges the Security Council to refer the case to the ICC, and acts as a
forum to foster global awareness of injustice. The team will also shed the need of waiting
upon the emergence of any third party that will be willing to take a case in front of the ICC,
and will therefore cut short the time between the emergence of a case of injustice and the
moment the international community decides to act upon the case.
Innovative practices related to Recommendation
A second step of the recommendation is, taking away the veto power of any member
of the UN Security Council in making the decision of prosecuting nationals of non-ICCmember states in front of the International Criminal Court. A third additional step would be,
for e.g., giving 25 per cent decision making power to the international law expertise team,
and keeping the remaining 75 per cent with the Security Council.
Policy Implications of Recommendation
Some of the policy implications involve altering the decision-making power of those
states that provide most of the funding (Cobban) for the prosecution of such individuals.
However, the International Criminal Court is largely independent from the United Nations,
and if it receives funding from it this means that the ICC receives funding from the UN as a
whole, and not exclusively from the UN Security Council, even though the members of the
Security Council provide a large share of UN resources. Furthermore, even if funding was
provided entirely by the UN, or entirely only by the UN Security Council, this should in no
way be an excuse for allowing for political bias to dominate the decision of referring cases to
the Court. The primary purpose of the International Criminal Court and the International
Court of Justice is to secure the proper distribution of international law and order, to bring
justice and to facilitate democracy in states where it is still lacked. The ultimate goal justifies
the financial means contributed to it by the international community. If properly
implemented, the establishment of a neutral International Law Expertise Team and the
bestowment upon it of great decision making power will warrant the interference in state
sovereignty of states not parties to the Rome Statute. If stakeholders are viewed as neutral
experts appointed by the rest of the world to the noble task of assessing against international
law the acts of individuals from any country.

The elements of the financial framework of the International Criminal Court are
detailed in Part 12 of the Roman Statute. The Financial Regulations and Rules are drafted by
the Preparatory Commission for the ICC. The ICC is funded with assessed contributions
made by member states, funds provided by the United Nations and approved by the UN
General Assembly, as well as voluntary contributions. ICC does not function within the wider
scope of an international organization (Rome). Because of the lack of institutional support it
is responsible for its own budget preparation and collection of contributions, operating its
own financial and administrative system in which the only budgetary authority of the Court is
the Assembly of State Parties. Contributions collected from the Assembly of State Parties are
based on the UN regular budget scale. Funds from the United Nations are in particular related
to expenses incurred due to Security Council referrals to the Court (Rome, article 115).
All expenses of the Court and the Assembly of States Parties, including the Bureau
and subsidiary bodies, are paid from the funds of the Court. The Court may receive and
utilize, as additional funds, voluntary contributions from Governments, international
organizations, individuals, corporations and other entities.
The team should be able to suggest individual contributions to the ICC by countries
whose interests are most concerned when referring a certain case to the ICC, such as
countries most affected by drug trafficking, or by radical ideology upon which terrorism
feeds.
Implementation steps for Recommendation
The judges would be selected by a committee, based on their neutrality, education,
professional carrier accomplishments, and their commitment to democracy, peace and justice.
The committee will continue monitoring the team and the individual members personal
development, making sure their involvement in domestic and international politics remains at
a minimum, and replacing the experts who have politicized with new, neutral candidates.
Discussion
The formation of the international law expertise team as a body of the United Nations
and in close collaboration with the UN Security Council, and yet having the influence of both
making professional judicial recommendations to the Security Council of referring
individuals to the ICC, as well as referring cases proprio motu against nationals of states
parties to the Court can have both its pros and its cons, depending on what international
organization ideology the recommendation is looked upon. The recommendation is made
from a point of an institutionalist view favorable and encouraging of globalization and the
ultimate formation of a single world government. In the institutionalist point of view,
international institutions are needed for sustaining cooperation and reaping its benefits. In the
international law system concerned with human rights, prevention and/or penalty for crimes
against humanity, the ultimate goal is the enforcement of international justice, promotion of
democratic values, and exalting the value of every individual human life. The movement
towards internationalization of governance and the idea of an ultimate formation of an
umbrella world government suggests that all elements characteristic of a sovereign state will
have to be incorporated in this government, including a legislative assembly, chamber of
ministers, head of government, executive, courts to regulate the proper functioning of
institutions and the rule of law, and a global military or police to enforce the rule of law and
order. The international courts would ultimately acquire the same characteristics domestic
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courts currently possess (Cogan), with jurisdiction to all four corners of the earth, in a similar
manner domestic courts today have jurisdiction over the whole territory of a country and all
of its nationals. The realist point of view, on the other hand, suggests the idea that
international institutions, including international courts, have no actual effect of the behavior
of self-interested predetermined states apathetic at preserving international stability, better yet
promoting justice and the rule of law. According to this theory, present-day IOs have reached
the peak of their capacity in preserving peace and the only way they are to follow from now
on is a downward one, because they have no more capacity of preserving international
stability in a largely self-interested international environment. In a realists point of view, the
policy recommendation has no true bearing in life since, according to them international
courts and IOs will never reach that level of development and sophistication to be able to so
vehemently strive to achieve collective security, international stability, and the complete rule
of law and order, free of all human rights violations, and rid of crimes against humanity as
well as the inclination to commit them. This policy memo is based on the institutionalist
interpretation of international organizations and courts, but the ultimate outcome of the
globalization project can only be revealed as time passes by. As for now it is emotionally
healthy to focus on the positivist, institutionalist worldview and work towards establishing
even more stable international governance, expecting the best, preparing for the worst.
Research that contributed to Recommendation:
Cobban, Helena. International Courts. Foreign Policy. March/April 2006. Retrieved online.
25 March, 2011.
Cogan, Jacob Katz. National Courts, Domestic Democracy, and the Evolution of
International Law: A Reply to Eyal Benvenisti and George Downs. The European Journal
of International Law. Vol. 20. no. 4. EJIL 2010. Retrieved online. 25 March, 2011.
Oberg, Marco Divac. The Legal Effects of Resolutions of the UN Security Council and
General Assembly in the Jurisprudence of the ICJ. The European Journal of International
Law. Vol. 16. no. 5. EJIL 2006. Retrieved online. 01 April, 2011.
Cryer, Robert. International Criminal Law vs. State Sovereignty: Another Round? The
European Journal of International Law. Vol. 16. no. 5. EJIL 2006. Retrieved online. 02
April, 2011.
Rome Statute of the International Criminal Court. Retrieved online. 21 April, 2011.
<http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm>