Creating 21st Century Global Governance Institutions: Can the International

Criminal Court Serve as a Repeatable Example?

Gerhard Labuschagne

There is a tide in the affairs of men…… On such a full sea are we now afloat, And

we must take the current when it serves, Or lose our ventures.1

Introduction

When Shakespeare used the character Brutus to state this truism, he obviously did

not have in mind an institution named the International Criminal Court. Nor were

aspects such as “global governance”, “post-Westphalian world order” or

“humanitarian law” part of his context. Despite this, the validity of Brutus’s words,

when applied to 21st century global institutions, is obvious for anyone dealing with a

globalized world.

Globalization, which has become an overarching characteristic of 21st century world

politics, is requiring the adaptation of almost all institutions which the world needs

(has at its disposal) to function. Stated differently, there is an adaptation demand

tide. Coupled to this, there is the example of the formation of the International

Criminal Court. In a relative effective manner, the world used the favourable post-

Cold War climate to deal with the long outstanding issue of an international human

rights regime. This development gives rise to the question: “Is the formation of the

ICC an indication of a new tide in world affairs, in that it offers an indication of how

the most pressing world problems can be institutionally handled?”

However, there is always the possibility to mistake a tide for an isolated rapid. The

circumstances surrounding the specific area of international human rights, as well as

the content of the sub-issues of this area, have formed a favourable action climate at

the change of the 20th and 21st centuries. This raises the question of whether the

formation of the ICC has been a unique development in the institutional structure of

world politics. Stated differently: “Can the formation of the ICC serve as a repeatable

example in world politics?”

The main aim of this paper is to look at aspects from the formation and nature of the

ICC, in order to reflect on the institutionalised situation of a globalized world. As will

be argued in the paper, the ICC can be regarded as a relatively successful response

to a pressing need in global governance institutionalization. In this process, a

number of aspects from the main IPSA-conference theme will be touched on, such

as the role of non-state actors, the sovereignty of states, and global governance. It

is an objective of this paper to link this discussion of the ICC to the main conference

theme. Furthermore, in order to contribute to the focus of this session

1 Shakespeare, William. Julius Caesar. Act 4, scene3, 218 and 222-224.

(“understanding institutions in the 21st century”), attention will be given to the ICC as

a contemporary international institution, to its effect on the position of the state vis a

vis global governance and politics, and to the nature of global governance itself.

A study as outlined in the previous paragraph necessarily confronts the observer

with the applicability of the theoretical basis of the political sciences in general, and

International Relations in particular. Depending on the theory or theories chosen,

the question contained in the title to this paper can be answered in a number of

different, and even conflicting, ways.2 The vastness of this theoretical basis prevents

a full scale use of theories to analyse the question. Thus only two broad theories,

realism and constructivism, will be used to illustrate how theoretical assumptions

determine our understanding of the situation under discussion.

Central issue

The 21st century, up till now, has proved global governance to be one of the most

vital, but also one of the most difficult problems, facing the world. The contemporary

world is faced by problems outstripping the ability of its regulating system.

Changing power patterns, and problems pertaining to inter alia finance, trade, health

and the environment, are not dealt with effectively by global governance institutions.

The central reason3 why the International Criminal Court is of importance in this

discussion is its situation vis a vis the state system. What is at stake here is the

following: There is wide spread perception that the state system, characterising the

Wesphalian order, is at the base of a failure to protect human rights globally. Within

this system, human rights have been regarded as a purely domestic issue.

According to the principle of state sovereignty, states have supreme authority over

their citizens. Thus, according to the Westphalian world order, outside intervention

for whatever reason, and thus also for violation of universal human rights, cannot be

substantiated. Were sovereign states in the habit of protecting human rights and

addressing the violations thereof, this structure probably would not have caused

problems. However, as proven time and again through history, this is wishful

thinking.

The formation of the International Criminal Court is often regarded as a rectification

of the world order’s inability to uphold international humanitarian law. The Rome

Statute, in essence, is an international institutionalization of humanitarian law.

Furthermore, it creates the possibility of jurisdiction, pending the willingness or ability

of states to honour their obligations, concerning the protection of human rights (in

this case protection against genocide, crimes against humanity, and crimes of

aggression). The ICC can thus be regarded as a mechanism, available to the world

community, to overcome the failure of the Westphalian state system (at least as far

as the protection of human rights is concerned).

2 For an example of this situation, see Leonard, E.C. The Onset of Global Governance, especially pp. 107-160.

3 Based on the discussion by Leonard, E.C., op. cit., p.49.

The key question, arising from the above discussion, is whether this situation can

also be extended to cover other issue areas important to the 21st century world

order. Stated differently, is there something concerning humanitarian protection

which makes it an unique issue area, or can the measures taken to deal with it serve

as an example for other pressing world issues? In other words, is the “overcoming

of the state system”, claimed to be so central to the “success” of the ICC formation,

also a prerequisite for the institutional solving of other world problems of the 21st

century? The problem which thus arises is: can effective 21st century global

governance institutional system be formed concurrent with the retainment of state

sovereignty? Keeping in mind that this problem can be overstated, it is clear that a

workable modus vivendi between state sovereignty and effective global governance

is needed.

Aim

The main aim of this paper is to investigate whether the formation of the International

Criminal Court (ICC) can shed some light on this question. It is proposed by this

paper that the formation of the ICC can serve as an example of how an institution,

compatible with the above requirement, can be formed. Formulated in terms of the

metaphorical language used in the introduction to this paper an answer is sought to

the following question: “can the formation of the ICC be regarded as the beginning of

a tide in the creation of a 21st century global institutional system, or has it been an

one-time rapid, being rather the product of the nature of its issue area in world

politics?”

Main Instances in the Formation History of the International Criminal Court 4

The run-up to the formation of the ICC can be traced back to the Paris Peace

Conference (end of World War I), when provision was made for the establishment of

an international criminal court to judge political leaders accused of war crimes.

However, no such court was established. In 1937, under the auspices of the

League of Nations, the issue was raised again – again without any practical result.

As a result of the atrocities during World War II, the need for a permanent

international criminal court resurfaced. In 1948, the General Assembly of the United

Nations requested the International Law Commission to attend to the matter. Two

preliminary statutes were drafted. However, the plans soon proved to be politically

unrealistic as a result of the unaccommodating circumstances of the Cold War.

Despite isolated voices in the meantime, it was not until 1989 that the idea of a

permanent international criminal court really resurfaced. A proposal was made for

such a court to deal with the international drug trade. Almost simultaneously, the

need for a permanent international criminal court was emphasised by the

4 Based on the historical review of the formation of the ICC as provided by Leonard, E.C. , op. cit., pp.17-43.

international decision to try war crimes in (the former) Yugoslavia, as well as in

Rwanda, by means of ad hoc tribunals.

In 1998, after a period of discussions and negotiations, the General Assembly of the

UN convened the Rome Conference. For the first time since the Second World

War, the international society seemed ripe for the establishment of a permanent

structure to deal with international justice. This resulted in the adoption of the Rome

Statute of the International Court of Justice. 120 of the participating states voted in

favour, 21 abstained and 7 voted against (China, Iraq, Israel, Libya, Qatar, United

States, and Yemen).

In April 2002, with the number of ratifying countries reaching sixty, the Rome Statute

became a binding international treaty, and a functioning treaty from July 2002

onwards. Other important dates during the development of the ICC were the

following: February 2003 - the election of the first bench of eighteen judges; March

2003 – the inaugural session; July 2005 the issuing of the first court warrants; 2006 -

the start of the first pre-trail hearings; June 2010 – amendments made to the Rome

Statute (Review Conference, Kampala, Uganda); 2012 – first conviction and

sentence.

State Sovereignty and the International Criminal Court5

The creation of the ICC can be regarded as a situation in which a large majority of

states have committed themselves to an unprecedented level of international/global

scrutiny and accountability. In this process their sovereignty as well as autonomy is

challenged.6 For a number of states the possible intrusion in to their autonomy to

make choices (in this regard about the extent they are willing to comply with the

standards of international criminal justice as embodied in the ICC) has been

unacceptable. For the majority, however, their compliance with the provisions of the

Rome Statute (the founding treaty of the ICC) indicates an important shift in

international/global politics.7

Given the specific focus of this paper, as well as limited space and time, it is

impossible to provide a full scale discussion of all possibly relevant aspects in the

formation of the ICC. In this discussion the emphasis is on the formation of a global

institution (the ICC) being capable of countering the ability of states to use their claim

to autonomy (as well as sovereignty) in order to frustrate global aspirations.

The ICC is a permanent tribunal with jurisdiction to prosecute individuals for four

groups of crimes, i.e. genocide, crimes against humanity, war crimes and the crime

of aggression (no jurisdiction, however, over the last one until 1917). International

5 Based on Jensen, R. Globalisation and the International Criminal Court: Accountability and the New

Conception of State. IN Dekker, I. & Werner, W.G. Governance and International Legal Theory. pp.159-183. 6 Ibid., p. 183.

7 Ibid.

law has long regarded these crimes to warrant universal condemnation. It is

regarded to be in the interest of all states to ensure that perpetrators are brought to

justice.8 In principal, all states can exercise jurisdiction over the commission of

these crimes. Many are also internationally obliged (as a result of agreements) to

prosecute offenders. Despite this, historically states tend to shy away from such

prosecution. Efforts to adhere states to their obligations tended to be frustrated

because of a tendency (and ability) by states to invoke non-intervention, autonomy

and sovereignty. Jurisdiction and accountability over perpetrators of these crimes

thus depend on a credible ability to overcome this tendency by states.9

The principle of complementarity (see art.17 of Rome Statute) provides a possibility

of trumping such state behaviour. According to the complementarity principle, the

ICC is intended as a court of last appeal. The ICC is only to intervene (investigate

and prosecute) where and when the courts of states have failed (being unwilling or

unable) to do so. Important in this connection are the provisions that the ICC may

probe the soundness of reason(s) offered for unresponsiveness by states to

prosecute and the nature of court proceedings conducted by states. In the case of a

state being unable to investigate, the ICC may decide whether such investigation

should be conducted by the ICC itself.

The above stipulations obviously constitute a compromise. On the one hand there is

a need to prevent states from blocking uncomfortable external investigation into the

conduct of their citizens. On the other hand there is the need to uphold state

sovereignty by defending state’s rights to uphold their own investigating and

prosecuting powers.

The (possible) frustration of state sovereignty and autonomy is linked directly to the

provisions of the treaty (art. 12) dealing with the territorial jurisdiction of the ICC. The

jurisdiction of the ICC is limited to cases where an accused is a national of a state

party, or where the crime was committed on the territory of a state party, or where

the situation is referred to the ICC by the UN Security Council. This situation creates

the possibility that the ICC can investigate and prosecute a citizen of a non-party

objecting state, provided that the crime by such a citizen have been committed on

the territory of a state party. What is compromised in this case is the internal

enforcement of law, traditionally being regarded as a core attribute of state

sovereignty. This aspect has been one of the important controversies surrounding

the ICC.

There is a tendency to regard the creation of the ICC not only as an intrusion into

state sovereignty, but as the erosion of state sovereignty, and even of the

Westphalian order, as such. Such an interpretation could suggest that the creation

of the ICC indicates a step towards “global government”. However, the feature

which allows states the first opportunity to investigate and prosecute relevant

8 Ibid., p. 178.

9 Ibid., p.179.

offences, makes such an interpretation questionable. This feature turns the ICC in

to a control mechanism, encouraging states to commit them to their own wilful

ending of impunity by perpetrators of these crimes. Rather than being an indication

of “global government”, the ICC thus represents features of broader “global

governance”.10

The role of non-governmental organisations (NGOs) in the creation of the

International Criminal Court 11

The role which NGOs played in the formation of the ICC constitutes an important

development in international law in general, and in treaty formation in particular.

Hundreds of NGOs participated in the proceedings of the Rome Conference. These

NGOs formed the so called CICC (Coalition for an ICC) and collectively they played

an important role in the formation process of the ICC. They participated in a number

of ways, inter alia by expert research, informal meetings with other (state)

representatives and circulating information. It is widely accepted that the role

performed by the CICC greatly contributed towards the approval process of the

Statute of Rome. It should also be noted that a close relationship between the ICC

and the participating NGOs has persisted from the Statute Conference onward.

The aspect of NGO participation in the Statute Conference which is the most

relevant for the purposes of this paper is how and to what extent state sovereignty

has been affected. It is important to note that traditional views on sovereignty did

not provide for participation in treaty formation by any other actors than (sovereign)

states. However, as indicated above, in the drafting of the ICC, NGOs have

performed a role that far surpassed their formal status in international law. Different

histories of the formation process seem to indicate that the driving power behind the

formation process were NGOs, rather than states. It is suggested that the NGOs

changed the climate of the entire conference and they proved NGOs to be a real

force in world politics.

(This aspect should be incorporated in the evaluation of the ICC as possible example

for constructing of broader global governance institutional system.)

Theoretical interpretation of the formation of the International Criminal Court

Given the emphasis of the Westphalian world order on the sovereignty of states, the

following question now arises: how could a large majority of the world’s sovereign

states create an institution which is (to extent explained previously) an erosion of

their sovereignty? Directly related to this is the following question: how do political 10

Ibid., p. 182. 11

Based on Witte, J.M. et.al. (eds.) Beyond Multilateralism: Global Public Policy Networks IN Pfaller, A & Lerch, M. (eds.) Challenges of Globalization. pp 109-127. See also Struet, M.J. NGO’s, the International Criminal Court, and the Politics of Writing International Law IN Dekker, I.F. & Werner, W.G. (eds.) Governance and International Legal Theory. pp 321-353.

scientists answer to a situation witch (potentially) can change the nature of the global

order?

A preliminary answer to the first question could be that the formation of the ICC is an

indication that, as a result of globalization, states are beginning to realize that their

ability to cooperate will better their own position and also that of a globalized world.

Stated differently, the promotion of the human collectivity (by combatting violation of

humanitarian law) seems to become part of the interest of a large majority of states

in the global community.

The answer to the second question is directly linked to the theory being employed by

the answering political scientist. More specifically, the view of the state premised by

the particular theory, is of importance. It is possible that each one of the number of

available (and often competing) international relations theories can contribute to a

meaningful answer. Given the time and length restrictions, only two theories will be

employed in this discussion, i.e. traditional Realism and the relatively newer

Constructivism (more specifically Relationalism as an identifiable sub approach).

These two approaches have been used with great explanatory success by Diane

Marie Amann12, and the present discussion relies largely on this contribution.

A large part of the formation procedure of the ICC is covered by the state premises

of Realism. Although this “common sense” theory of international relations has a

large number of exponents and variations, the following characteristics are probably

shared by all the exponents:13

Statism: The state is the pre-eminent actor in world politics. All other actors

are of lesser importance and thus warrant lesser attention, if at all.

“Sovereignty” represents the essence of a political community which

exercises juridical authority over its territory.

Survival: This is the primary objective of all states. This is the supreme

national interest, guiding all actions by political leadership.

Self-help: A state can rely on no other state or institution to ensure its survival.

Given these state premises, the formation of the ICC can, to a large extent, be

reported in terms of Realism. In short, all participating states, large and small, acted

in accordance with the state premises of Realism in that they regarded themselves

as the key actors in the process. Some also tried to use the process for self-

maximation by insisting on the accommodation of self-interests even by the threat (in

some instances the actual practice) of non-ratification of the ICC treaty. It has even

been claimed that the adoption of the controversial art. 12 of the treaty (the non-

consensual provision) can be explained in terms of typical Realist state premises.14

12

Amann, D.M. The international criminal court and the sovereign state. IN Dekker. I.F. & Werner, W.G. (eds.), op cit., pp. 185-212. 13

See Dunne, T. & Schmidt, B.C. Realism. IN Baylis, J. et.al. (eds.) The Globalization of World Politics. pp. 103. 14

Amann., op.cit., p. 204-205.

There is, however, an important aspect concerning the creation of the ICC which

cannot be explained in terms of the Realist state premises.15 The willingness by

such a large number of states, assenting to compromise their (traditional) power to

protect their citizens against outside prosecution and punishment, cannot be

explained in terms of self-interest. (It should further be noticed that - in terms of the

Statute of Rome - this loss of power also applies to non-consenting states).

Explaining this situation can better be done in terms of the theory of Constructivism.

Since Constructivism is a constitutive, rather than an explanatory theory (such as

Realism), it is better suited to capture the change in world politics, signalled by

compromised sovereignty as represented by the ICC. The following

characteristics/premises of Constructivism probably are the more relevant ones for

the purposes of this discussion:16

The world is made and re-made through human action.17 Ideas are treated as

structural factors and knowledge is regarded as a consequence of how actors

interpret their social reality. Social facts (sovereignty, human rights) stem from

human agreement. The origin of accepted facts is questioned and alternative routes

to alternative outcomes are investigated.18

Global change and transformation can be investigated well as a result of the

acceptance of the world as a social reality.

Diffusion (how particular models, practices, norms, strategies, beliefs are

spread) is a central theme in the study of global change.19

Institutional isomorphism (how the sharing of the same environment will, over

time, leads to resemblance) and the internationalization of norms contribute to

a growing homogeneity in world politics and the strengthening of international

community.20

Given its ideal type character, the “independent” state has never existed.21 It

is through the process of interaction that statehood is given meaning.22

Sovereignty is dependent on, and shifting with, the understandings states

share with one another.23

Although states are (remain) the most significant actors in world politics, the

role of other actors - resulting from either power concessions or power

collapse by states - should be acknowledged.24

15

Ibid., p.205. 16

See Barnett, M. Social Constructivism. IN Baylis, J. et.al. (eds.) op.cit., p. 160-173. 17

Ibid, p. 161. 18

Ibid., p.168. 19

Ibid. 20

Ibid. 21

Bordio, P. Escape social et espace symbolique. Referred to in Amann, op. cit., p.201. 22

Iibid., p. 202. 23

Ibid., p. 202. 24

Ibid.

Given these aspects, the interpretation of the formation of the ICC, based on

Constructivist characteristics and premises, can now be considered.25 New situations

lead to changing state behaviour. This is indicated by changing ways in which states

regard themselves and (eventually) changes in the collective understanding of state

identity. Examples of this can be found in the growing interdependence between

states and the rise in new non-state sources of authority in global politics. The

positive participation of the larger number of states in the formation of the ICC can

be explained only up to a certain extent in terms of the self-interests of individual

states. It seems as if this rather indicates a change in the nature of state interest

itself, in that a preferential response to the needs and claims of the human

community is regarded as a (new) interest of individual states. The interest

specifically carried by the formation of the ICC is the promotion of the human

community by combating atrocity. Stated differently, this interest represents a new

understanding of the role of the state in international crimes. A Constructivist

interpretation of the formation of the ICC thus seem to indicate that the “international

community had succeeded in constructing a counterbalance to state power”.26

Summary and Conclusion

This paper is built around the formation of the International Criminal Court in order to

reflect on the institutional situation of a globalized world. The main issue has been

identified as the tension between state sovereignty and an effectively functioning

global institutional order. This is well illustrated by the discussion of the ICC as an

attempt to institutionalize the global protection of human rights. In this process a

number of important aspects concerning state sovereignty have been raised. It has

been discussed how specific stipulations of the Rome Convention are eroding state

sovereignty.

The question is then asked: how can Political Scientist try to explain the situation that

states seem to forfeit (some aspects) of their sovereignty in order to create effective

global governance. Two theories of International Relations, Realism and

Constructivism, are used to provide a possible answer.

Realism is found unable to explain the willingness of the greater majority of states to

act in a greater interest than their immediate own. However, the emphasis of

Realism on the political nature of global governance should be heeded. Stated

differently, the nature of global governance institutionalism will most likely remain (a

la Realism) a political project and process.

Constructivism seems to indicate that the formation of the ICC is indicative of a

change in the nature of state interest itself. If this is the situation, the formation of

the ICC can serve as an important example for the other aspects of global

government also in need of adaptation. If so, the formation of the ICC can indeed

25

Ibid. pp. 206-210. 26

Ibid. p. 212.

serve as a repeatable example in the formation of other global governance

institutions, thus becoming part of a tide instead of an isolated rapid.

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