Monday, November 29, 2004

Judicial Freedom

The International Criminal Court (ICC) has had a discordant history. Post the signing of the Rome Statute in 1998, it is only now commencing a few trials. Some large states such as India and the United States have refused to sign the treaty binding them to the dictates of the ICC, expressing concerns about the neutrality and safeguards of the ICC.

An article in the Times of India notes that the ICC can be seen as a more forceful body only if it comes out of the shadow of the United Nations.

Currently, the ICC is chartered by the United Nations, and it would require an amendment of the UN Constitution for true independence, but an independent judiciary is a necessary condition for due recognition of its mandate. The structure of the ICC also does not permit it to suo moto look into criminal matters. Either the UN or the Prosecutor of the ICC must bring matters such as the current case involving the Democratic Republic of Congo before itself.

From the Rome Statute, the legal powers of the ICC are:

  1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.
  2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.

The ICC exercises its jurisdiction if

  1. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
  2. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;
  3. The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
A step was taken in the direction of independence of the Court by the signing of a relationship agreement between the United Nations and the ICC on 4th October, 2004.

The United Nations recognizes the Court as an independent permanent judicial institution which, in accordance with articles 1 and 4 of the Statute, has international legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.
The relationship is a strong one, though, as

The United Nations and the Court shall make every effort to achieve maximum cooperation with a view to avoiding undesirable duplication in the collection, analysis, publication and dissemination of information relating to matters of mutual interest. They shall strive, where appropriate, to combine their efforts to secure the greatest possible usefulness and utilization of such information.


The United Nations itself has endorsed the essential importance of an independent judiciary by its adoption of The Basic Principles on the Independence of the Judiciary in 1985. For many states, such as India and the United States, an independent judiciary is a safeguard against executive and parliamentary excess.

Thus, the ICC could serve as a check on the excesses of the member states, but only if it were independent of any inducements or concentrations of power from these states. A court is incapable of rendering judgement if its judgement cannot be enforced. Following this argument to its logical conclusion, the International Criminal Court would need an enforcement arm to be truly effective - an International Police System, as it were.

The refusal of large states to be bound by the terms of the Court set a bad example for smaller states. At the same time, the danger of the tyranny of the global majority of weak states cannot be under-estimated. The question of whether it is better to have a single, strong global policeman, or an army of petty warlords policing the world in their own image is not an easy one to answer.

Of Note:
ICC Resources at the Citizens for Global Solutions website has a variety of documents and news on the ICC

"The International Criminal Court: Global Politics and the Quest for Justice" provides an overview of the history and controversy surrounding the ICC

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