Norms, Rules, and the Meaning of the ICC

How should we understand the purpose of the International Criminal Court? The Rome Statute is a dense and intricate document, as it incorporates an extensive set of principles and procedural rules drawn from international humanitarian, criminal, and human rights law. As such, identifying the ICC’s core functions and contributions can be difficult.

Notwithstanding this complexity, it is possible to identify a set of features that form the basis of the ICC legal regime. Understanding the “meaning” of the International Criminal Court requires attention to both its underlying norms, and the particular configuration of rules designed to achieve these ends. Here I present a brief schema of the primary features of the ICC regime. This is an imperfect exercise, as norms and rules are ideal types which are often difficult to distinguish in practice – so suggestions on other ways to conceptualise the ICC are most welcome!

Defining Norms and Rules

Treaties are composed of a bundled set of norms and rules. Norms are shared expectations regarding what constitutes appropriate behaviour within a social group. They are generalized values or principles, typically expressed in terms of obligations or duties – what one “ought” to do. These standards are widespread in modern life, even if they are not always written down in a formal text. Rules, by contrast, apply these principles to a particular situation, and provide specific guidance on how to act. Rules in effect convert norms into a detailed command—what one “can” or “cannot” do—or technical solution – “how” to do something.

Norms and rules interact, but we can distinguish them by paying careful attention to their legal function. The key question is: does it refer to a general standard of behaviour or obligation, or rather to a specific order or procedural means for achieving that goal?

The Foundational ICC Norm: Criminal Punishment for Grave Crimes

In practical terms, the purpose of the Court is to investigate and prosecute persons alleged to have committed the most serious international crimes. At its heart, the central norm of the ICC is that criminal prosecution and punishment is the appropriate response to certain egregious acts. The ICC has jurisdiction over genocide, crimes against humanity, war crimes and—once a definition has been agreed and included in the Rome Statute—aggression (Rome Statute, Articles 5-8). These “core crimes” are understood to constitute the most serious forms of violence in the international system, and are thus to be distinguished from other types of criminal activity like piracy, drug trafficking, and so on.

Unlike other existing legal institutions, the ICC is the first permanent Court charged trying individuals: the International Court of Justice addresses disputes between states, and the various ad hoc international criminal tribunals (including those for Rwanda and the Former Yugoslavia) were limited to specific geographical areas and time periods. Importantly, the Rome Statute deviates from previous practice by rejecting all forms of diplomatic immunity; the ICC is predicated on the assertion that all perpetrators—no matter their official title or role—must be held accountable for these most serious crimes.

The content of ICC crimes for the most part reflects established international customary and treaty-based law: the acts which constitute genocide, crimes against humanity, and war crimes, as well as modes of liability and were widely—though not completely—accepted at the time of the 1998 Rome Conference. (At the same time, the Statute also advances the existing law in some important respects, as with gender and sexual violence crimes and the rights of victims in legal proceedings.) The treaty therefore seeks to improve the implementation and enforcement of existing international criminal and humanitarian law, while at the same time creating new mechanisms to realize this goal.

“Complementarity” and the Division of Labour Between States and the Court

The Court will only possess a limited independent capacity to investigate and prosecute cases, and so relies in large measure on the effective pursuit of justice at the national level. To organize this division of labour, the Rome regime creates a new hierarchical structure of complementarity whereby the Court shall defer to states unless they prove unable or unwilling to genuinely pursue perpetrators (Rome Statute, Article 17).

The deference (in most cases) to state authority is based on a normative order in which all states have a duty to investigate, prosecute and punish grave crimes through their own domestic criminal procedures. Moreover, these national efforts will be judged by how closely they adhere to the standards contained in the Rome Statute. This requires the modification of national laws to render them compatible with the international criminal and humanitarian legal standards of the – for example, by accepting all crimes under in the Rome Statute as well as adopting the modes of liability and jurisdiction, the absence of immunities, and fair trial standards.

With the advent of complementarity, the Statute creates a new internationalised system of prosecution and punishment: while national authorities retain the primary responsibility for ending impunity, they must do so via internationally-agreed standards of criminal law and with the implicit oversight of a supra-national legal body. The goal is to create a homogenous regime of criminalization for certain acts, which is to be effected through a structure of competing (domestic and international) jurisdictions that are ordered by the complementarity norm.

The assumption underlying this exercise is that international criminal justice can be best realized by transforming national criminal systems, and not by centralizing legal activity (investigations and prosecutions) in the Court itself. Indeed, the expectation, as expressed by the Chief Prosecutor, is that the success of the ICC will largely be measured in terms of its impact on domestic legal practice: “As a consequence of complementarity, the number of cases that reach the Court should not be a measure its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.” (Moreno-Ocampo: 2)

In this sense, complementarity sits in an awkward middle ground between norms and rules: it is both a guiding principle and standard of behaviour, and suggests (at least in general terms) a method for determining how to assert jurisdiction over a case. Indeed, while the core norms of international humanitarian law are arguably more “settled,” the system of complementarity—and the resulting relationships between international and national institutions—is more contentious. On the one hand, opponents of the Court like the United States have articulated a principled objection to idea that national legal processes may be questioned by outside actors – a violation, in their view, of the principle of state sovereignty. This opposition is typically expressed through a rejection of specific treaty rules, as discussed below. On the other hand, as a consequence of the structure of complementarity the Court also finds itself in the unique position as both the arbiter of appropriate conduct while at the same time being largely reliant on its member states to implement its orders. These dual functions point to the difficulty Court officials often have in deciding when and how to comment upon the progress (or lack thereof) of states parties in meeting their commitments.

Rules at the Heart of the ICC Regime: Jurisdiction and Trigger Mechanisms

As noted above, many of the principles embedded in the ICC Statute were broadly accepted at the 1998 Rome Conference as reflecting established international law. As such, the most revolutionary and controversial aspects of the Rome regime are found in its specific institutional arrangement. The overarching principle guiding negotiations was that the Court must be an independent entity; the question for negotiators, however, was how to affect this end. The Statute includes a wide range of procedural rules concerning how and under what circumstances the Court may consider a case as well as the various commitments states undertake to cooperate with the Court on matters of arresting and surrendering suspects, providing evidence, and other means of support (Rome Statute, Articles 86-102).

Two of the most notable, and controversial, features concern jurisdiction and the trigger mechanisms for launching an investigation. First, the Court will be able to consider alleged violations that occurred either on the territory of a state party, or were committed by the national(s) of a party to the Rome Statute. While stopping short of permitting universal jurisdiction for crimes committed by any citizen on any territory, the Statute does leave open the possibility that nationals from non-parties may be subject to ICC prosecution even though their governments do not accept the Court’s authority. This was strongly resisted by many prominent Court opponents and remains a primary source of opposition. Second, the Rome Statute gives the Prosecutor the power to initiate investigations proprio motu – that is, under his or her own initiative. This outcome went against the demands of many powerful delegations (chiefly the United States) that in the absence of a self-referral by a party to the Statute, the sole right to launch proceedings would be vested with the United Nations Security Council.

When taken together, this configuration of actors and responsibilities constitutes a particular institutional solution to the problem of how to effectively punish—and hopefully deter—the most heinous crimes in the international system. On the one hand, the final ICC regime—the norms concerning the scope of ICC authority and the rules defining the Court’s proper functioning—is the product of a detailed negotiating process that achieved broad consensus among the 120 nations that voted in favour of the Statute in Rome in 1998. In this sense, the ICC can be seen as the institutional means of enforcing an established normative order. Yet this particular outcome was neither guaranteed at the outset, nor uncontroversial in hindsight. Indeed, as I will show in a later post, both parties to the treaty and those which remain outside its authority may challenge the legitimacy of the ICC, and may do so on either principled or procedural grounds.

The question for readers: does this distinction between norms and rules make sense? Are there more effective ways of characterizing the content—both established and innovative—of the ICC regime?

Below are a few suggestions for further reading:

Amnesty International. (2000) The International Criminal Court: Checklist for Effective Implementation. Available online at http://www.amnesty.org/en/library/info/IOR40/011/2000/en.

Burke-White, William. (2008) “Implementing a Policy of Positive Complementarity in the Rome System of Justice.” Criminal Law Forum 19: 59-85.

Drumbl, Mark A. (2005) “Collective Violence and Individual Punishment: The Criminality of Mass Atrocity.” Northwestern University Law Review 99(2): 539-611.

Gioia, Federica Gioia (2006) “State Sovereignty, Jurisdiction and ‘Modern’ International Law: The Principle of Complementarity in the International Criminal Court.” Leiden Journal of International Law 19.

Human Rights Watch. (2001) Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute. Available online at http://www.iccnow.org/?mod=romeimplementation&idudctp=21&order=dateasc.

Moreno-Ocampo, Luis. Statement made at the ceremony for the solemn undertaking of the Chief Prosecutor of the ICC. June 16, 2003. The Peace Palace, The Hague, The Netherlands. Available online at http://www.coalitionfortheicc.org/?mod=prosecutor.

Rome Statute of the International Criminal Court. July 17, 1998. Available online at http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Rome+Statute.htm.