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COPYRIGHT 2006 Professors World Peace Academy
The article discusses the importance of the International Criminal Court (ICC), a recently established intergovernmental organization to address the most heinous crimes. This organization is first evaluated with respect to its impact on the notion of national sovereignty, upon which the international system has long been based. Then the contribution of global civil society in the creation of the ICC is outlined in order to demonstrate that the global order is gradually departing from being state-centric. And finally, the US opposition to the ICC is briefly examined as that opposition is extremely relevant to the subject, given that the US is regarded as the sole superpower, which is supposed to have a determinative role in the conduct of global politics.
INTRODUCTION
Human rights issues have not been paid much attention to at the international level until the end of the Second World War. One of the major obstacles before the realization of substantial improvements in the field of human rights was extensive concerns over national sovereignty. It should be noted that the concept of sovereignty is closely associated with the principle of "nonintervention," according to which sovereign states are strictly obligated not to intervene in matters falling into the domestic jurisdictions of other sovereign states. (2) As a consequence, "apart from [a] few examples, policymakers and intellectuals paid almost no attention to the concept of human rights before the Second World War." (3) After the end of the Second World War, "it became that human rights, formerly considered the domain reserve of States, were now a matter of concern for the whole international community." (4) Even though "the doctrine of humanitarian intervention" formulated by the renowned Dutch scholar, Grotius, was legitimizing the intervention of states in the matters of state, which was believed to violate rights of its own citizens extensively, with a few exceptions, that doctrine was not exercised.
After the end of the Second World War, protection of human rights was placed on the agenda of international politics. The leading factor for the dramatic transformation toward the prevention of the abuses of fundamental rights and freedoms, which have long been overlooked by almost all global actors, including intergovernmental organizations, such as the League of Nations that was greatly concerned with non-intervention into domestic matters of sovereign states, and paid little attention to, and for the tendency toward the protection of rights of individuals is the Nazis' atrocities committed to the Jewish and other nations during the Second World War. The notorious Holocaust and genocide of Jews by the Nazis horrified humanity and accelerated efforts to establish protection and promotion mechanisms of human rights worldwide.
The evolution of global human rights could be found in Buergenthal's analysis on this subject. He refers to four general stages in this evolution. The first stage is "the normative foundation," which "begins with the entry into force of the UN Charter and continues at least through the adoption in 1966 of the International Covenants on Human Rights." (5) The period saw the adoption of such principal human rights instruments as the Universal Declaration of Human Rights, Genocide Convention, and the Convention on the Elimination of All Forms of Racial Discrimination, such regional documents as the European Convention on Human Rights, the American Declaration on the Rights and Duties of Man, and such secondary documents as the Convention against Discrimination in Education, and the Convention Concerning Discrimination in Respect of Employment and Occupation, promulgated by UNESCO and ILO respectively.
The second stage is "institution building," which "begins in the late 1960s and continues for the next fifteen to twenty years." (6) The period saw the emergence and consolidation of universal and regional treaty-based institutions for the protection of human rights. The UN Human Rights Committee, the Committee on the Elimination of Racial Discrimination, Inter-American Commission and Court of Human Rights, a special mechanism adopted by UNESCO for dealing with human rights violations that fall within its sphere of competence and several ILO institutions for dealing with human rights issues, are only a partial list of institutions established in that period.
However, the institutions created in the period of "institution building" had not been effective until the 1980s "when they could begin to focus on adopting effective measures to ensure state compliance with their international obligations." (7) This process is called "implementation." The leading factor that made implementation of treaties and conventions on human rights easier than before was the collapse of the Soviet Union and the dissolution of the Communist Bloc.
Buergenthal names the fourth stage "Individual Criminal Responsibility, Minority Rights, and Collective Humanitarian Intervention." (8) Traditionally, the international community has shown a tendency to hold governments rather than individuals responsible for the violations of internationally guaranteed human rights. Although in the post World War II crimes trials, the Geneva Convention on Humanitarian Law, and some international human rights treaties, primarily Genocide Convention, individuals were held responsible for some of the most serious human rights abuses, such as genocide, crimes against humanity, and war crimes; international human rights law and efforts for its enforcement have for the most part focused on the obligations of governments. (9) Today, "the concept of international responsibility for massive violation of human rights is being expanded to include individuals and groups in addition to governments." (10) Therefore, while individuals have greater rights under international human rights law, they have corresponding duties not to violate those rights, and are held responsible for their violation. We have also witnessed a growing interest by the international community in the establishment of international norms and institutions for the protection of members of national, racial, ethnic, linguistic, or religious minorities. Adoption of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities in 1992, the Framework Convention for the Protection of National Minorities in 1994, the establishment of the office of the OSCE High Commissioner for National Minorities are some of the attempts to focus international attention on the need for the international protection of minorities. (11) Collective humanitarian intervention is made possible by the UN Security Council, which is "increasingly taking action to deal with large-scale human rights violations by authorizing enforcement measures under the powers that Chapter VII of the UN Charter confers on it." (12)
Therefore, the final stage in the evolution of human rights is the recognition of private individuals as a new subject of international law. The international legal system dates back to the 1600s and, since then, only states have been regarded as the main actors in global politics. The human rights regime has long been based on the enduring principle of state responsibility. For a long time, treaties, the primary instruments of international law, existed to regulate relations between states. However, the evolution in human rights politics brought individuals into the stage. Under the contemporary international legal system, individuals are recognized as the holders of rights. (13)
However, it is worth noting that they are not just holders of rights, a fact that implies that states are responsible to protect those rights. They are, under international law, now assumed to be responsible for their acts as well. This state of responsibility, however, does not cover all matters that fall into the scope of international law. Instead, the individuals are responsible for serious criminal acts only.
It is, therefore, international criminal law that holds the individuals responsible for their acts. This seems to be unusual given that international law has regulated inter-states relations. However, it should also be noted that states have been given wide discretion to deal with the criminal acts of the individuals. In other words, although the individuals have been held responsible in some particular cases, with a few exceptions, no international mechanism has been formed to address them.
The recently established permanent International Criminal Court is this international body to cover the issues pertinent to international criminal law. Until its establishment, nation-states have had the authority to try and punish the perpetrators of the most heinous crimes. However, it has been observed that this system has not worked very well, for the world has witnessed several genocidal campaigns, much more massive killings of ethnic and national groups and numerous situations in which war crimes have been extensively committed.
In particular, the genocidal attempts in the former Yugoslavia and Rwanda are clear examples worth mentioning in this regard. Even though the international community has developed legal instruments to prevent those occurrences, it is evident that they did not succeed. The Genocide Convention of 1948 (14) and the Geneva Conventions of 1949 (15) hold the states responsible with regard to the rights they guarantee. (16) In addition, especially in case of the crime of genocide, it is generally accepted that it is an international customary rule that any state is responsible for its prevention and for its punishment in case it has been committed in its own territory, even if it is not bound by a treaty requiring doing so. However, notwithstanding these novel arrangements, there have been attempts to exterminate an ethnic group even as late as the 1990s in the former Yugoslavia and Rwanda and since 2003 in Darfur, Sudan.
It is this observation that led the international community to create a permanent body to address international criminal matters. The International Criminal Court is the outcome of the need to create such a body. This article explores the significance of this new actor in world politics. Although having an international legal personality, the Court is likely to affect the conduct of world politics. In this article, this effect is analyzed in three sections. First, the impact of the Court on the perception and exercise of national sovereignty is discussed. Second, it is argued that the global civil society's impact was so great in the creation of the Court that it is now impossible to ignore it as a significant global actor. Finally, the US opposition to the Court and the subsequent developments suggest that the supremacy of the US in world politics is likely to be questioned.
OVERVIEW OF THE INTERNATIONAL CRIMINAL COURT (THE ICC)
Established as an intergovernmental organization, the International Criminal Court (the ICC or "the Court") is specifically designed to deal with the international crimes that are thought to be most severe and serious. It has generally been observed that the commission of those crimes had gone unpunished, making the impunity of the perpetrators a usual and ordinary practice in international relations. Although the idea that a permanent international criminal court is strongly needed, and therefore, should be created, lingered for a very long time. The realization of that idea has come quite recently. Nation-states, the major and primary actors of the international system, have generally been lenient, if not reluctant, in addressing those kinds of acts. Particularly, concerns over sovereign rights of the states have made them reluctant to get together to discuss the issue up until 1998. Since sovereignty has been the underlying principle in the operation of the international system that is generally believed to be built by sovereign nation-states, states have long refrained from dealing with the issues pertinent to even the gravest crimes in order to show their tribute to the principle of non-intervention. As a consequence, apart from a few examples, human rights issues in general, and international crimes that are the most serious violations of human rights in particular, have not adequately been addressed by the state-based international system.
Therefore, the year of 1998 marked an historical moment, since there appeared for the first time a real possibility that the long-survived notorious practice of impunity would be unusual in the foreseeable future. In July 1998, the most important initial steps toward ensuring the globalization of justice and the end of impunity were taken at the Rome Diplomatic Conference to Establish an International Criminal Court, (17) and subsequently the Rome Statute (18) setting up such a Court was adopted and opened for signature, "half a century earlier than many predicted." (19) The Statute was authored by the representatives of the Participant States so as that the treaty would have entered into force after the number of 60 in ratifications is reached. That is to say, the Court was not automatically created at the conference. Although the vast majority of the participant states to the conference signed the treaty, showing their willingness and commitment to abide by the treaty content, the number of states that have signed the treaty but are not party to the ICC could be regarded as "significant." As of now, the number of the States Parties to the Rome Statute and to the ICC is 99, while the number of signatories is 139. (20)
On the other hand, it is worth noting that the threshold for the...
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