Living up to the legacy of Nuremberg

Siddharth Varadarajan

With 100 countries on board, the International Criminal Court is slowly negotiating the hurdle of universality. But with countries like the United States (and India ) outside its purview, how effective will it be in dealing with war crimes, aggression, and torture? In an exclusive interview to The Hindu, ICC president Philippe Kirschspeaks about the court's limitations but stresses the work has got off to a good start. Excerpts:

In a recent speech on the 60th anniversary of the Nuremberg trials, you said the International Criminal Court was the inheritor of that tradition. Justice Robert Jackson and others associated with Nuremberg have argued that tribunal's main achievement was establishing the crime of aggression as the supreme international crime, because aggression contains within it the "accumulated evil" of all other crimes. Isn't the absence of aggression from the mandate of the ICC — at least till 2009, if not later — a fatal flaw?

The Nuremberg trials were a response to crimes committed on a massive scale, which had tremendous consequences not only on individuals but on international peace and stability. It became clear you need to have a mechanism when national institutions were unable to act, that would try the most serious perpetrators of crimes, and would isolate the guilt to those individuals — as opposed, for example, to a whole population. That idea led to the thought that if further crimes were to be committed, it would be good to have a permanent institution... The Rwanda and Yugoslavia tribunals showed international criminal justice could work but they had inherent limitations. They were created for a particular situation; they were retroactive. In any event, those tribunals could not achieve what is one of the aims of international justice, the creation of a culture of deterrence. Eventually, that led to the creation of the ICC. It was created by treaty and there was no question of it being imposed, it is prospective and not retroactive, it is not specifically directed to any particular situation, and it is open, it is available, it does not depend on any political decision of a few states at the time.

Aggression, as you know, is listed among the crimes, but is not yet operational because it has not yet been defined... Its absence today is a lack, but I don't think the jurisdiction of the ICC is fatally flawed for that reason. First, aggression implies an international act, an attack by one state on another.

When you see the situation of Rwanda , or Cambodia , or the situation within former Yugoslavia , in many cases there was no international element. Yet, massive crimes were committed and national systems did not function at all. The second point is that if an attack is committed by a state against another, and even if the attack is not covered, all the crimes that may come with an attack — war crimes, almost always, crimes against humanity, increasingly — are covered under the statute.

So an attack of the kind that took place on Iraq , say, would be covered by the kind of situation you are talking about?

As a judge of the ICC, I cannot comment on specific situations. I am bound to deal in concepts.

You have described the ICC as an improvement over the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda . One of the criticisms of the ICTY is the seemingly political manner of the conduct of its prosecutorial system. I have in mind, for example, its refusal to take up the case of the killing of Yugoslav journalists by NATO when it deliberately bombed Belgrade 's TV station in 1999. What is different about the ICC's system of taking up cases that could protect against this perception of political bias?

I will not comment on the way another tribunal conducts itself. But on the question of possible politicisation, put yourself in the position of the states which created the ICC in 1998. What they did was to create a court whose jurisdiction was completely unpredictable. The last thing the states wanted in doing that was a court that had any remote possibility of conducting politically-motivated prosecutions or behaving politically. There are procedural principles within the statute which are extremely tight and detailed.

For example, the prosecutor in undertaking an investigation on his own accord has to have the authorisation of a pre-trial chamber. At that time, the accused, or the state of the nationality of the accused, will come and tell the ICC, `our national system is operating properly, you have no business there.' And then the pre-trial chamber's decision can be taken to an appeal chamber of five judges. So the system is extremely tight, and the rights of the states and the accused are defined in great detail.

The rules are so tightly construed to protect states against what they feel might be political motivation that this itself can lead to politicisation of another kind. For example, Khaled el-Masri, a German citizen, says he was kidnapped in Macedonia by U.S. forces, taken to Afghanistan and tortured, and then dumped in Albania . Germany, Macedonia, Afghanistan are all states parties to the ICC. If he were interested in approaching the ICC, would he be able to?

The ICC prosecutor has received more than 1600 communications from a variety of sources, quite apart from the four referrals that were made formally to the ICC, containing allegations of crimes that had been committed under the statute. More than 80 per cent of those communications were dismissed by the prosecutor on the grounds that the crimes were not right, or the timeframe was not right, or that the situation invoked involved no state party. So there is already a clear decision to stick to the statute. Now the case — hypothetical case — you are raising...

It is a real case. The only thing hypothetical is his decision to move the ICC.

Right, the kind of case you are raising involves a situation where all states are parties where, technically, the court has jurisdiction. But then comes the element of gravity. Take crimes against humanity, you have a list of crimes, starting with murder. Now, any murder is not a crime against humanity. For a murder to be a crime against humanity, it has to be committed in the context of a systematic, widespread attack against a civilian population, and that attack has to be in application of a policy of a state or organisation, and the perpetrator has to know that. This is an extremely high threshold. The business of the ICC is not to take up isolated issues like this. One of the aims of the ICC is to prevent genocide, war crimes, crimes against humanity — they all reflect crimes of a widespread nature. If the ICC began to deal with isolated incidents, it would not only be a mistake, it would be against its mandate, its mandate being the high-level commission of crimes.

Do you think the fact that major countries like the U.S. , India , China are not signatories affects the credibility of the court?

I have always been convinced the aim of the ICC has to be to reach universality. It is a matter of principle and a practical matter, because you have constraints over its jurisdiction that eliminate certain situations if states are not a party. Now, there are a number of states that have not been as convinced as the 100 ratifiers that the legal foundation of the system is impeccable. I think if states want to wait, it is their national decision, but then the answer to this has to be the way the ICC behaves. If the ICC behaves in an absolutely and exclusively judicial way, without any trace of politicisation, at that point, support for the ICC by states which are hesitant is bound to increase.

The U.S. is one of those countries that feels the process could be political, it is signing agreements with states parties to ensure its citizens are never brought before the court. Is there a danger that in your concern to demonstrate the ICC will not "politically" target the U.S. , the court and its system will soft pedal cases that may fall under its mandate but where the U.S. would take an adverse view, such as the case I mentioned of Mr. al-masri? This is not an isolated case as you seem to suggest, but part of a host of evidence in the last two-three years of the customary norm against torture being violated by the U.S. You have official memos that advocate a certain interrogation system. So these are not individual or isolated instances.

We are not trying so hard to convince the Americans we are not political. We are not political. The court behaves in a judicial way because that's its job. To be political would be against its mandate. It is not a matter of diplomacy but of judicial administration. As for the broader point you are raising, as I see it, first, the ICC cannot intervene in situations which concern non-state parties. But, second, the ultimate criterion for anything the ICC does now is gravity.

But if I may interject, the allegations on torture involve flights to — and torture in — countries that are signatories, which would suggest geographical jurisdiction would not be so much of a problem. And the fact that it is not just one incident but many would suggest these are not isolated instances.

I cannot substitute myself for what the prosecutor is doing. The prosecutor has received four situations formally and has his hands full. As a result of these 1600 communications, he is also monitoring eight other situations that are not public, that are not known to me. There is a separation of powers. But certainly I can see that there is a great deal of consistency in the prosecutor's policy so far, which is, that he focuses his efforts on the gravest situations. Now, how that will be applied to specific situations I cannot say.

On jurisdiction, Afghanistan is a signatory. If Afghan citizens make allegations against soldiers from coalition countries that are not signatories, there would be no problem of physical jurisdiction, right?

Yes.

And notwithstanding any immunity agreement the Afghan government may sign with those coalition countries?

I can't talk about that. That's the kind of question that may come before the court for judicial determination. I cannot give an opinion on that now.

Earlier this year, the Iraqi government revoked its decision to join the ICC. What arguments would you like to make to tell the Iraqis they should be part of the ICC?

I cannot comment on any specific situation on any specific state. I think...

What are the Iraqi objections?

I have not heard anything. All I heard was that they were going to ratify, and one week later they said they were not going to.

What do you think happened in that week?

I don't know. Ask the Iraqis. (laughs)