Is the International Criminal Court Flawed?

A July 8th New York Times headline proclaims, “Arab Uprisings Point Up Flaw in Global Court.” It erroneously suggests that the people operating the International Criminal Court are stupid or cowardly or that the diplomats who in 1998 drafted the ICC’s governing treaty, the ICC’s Rome Statute, were similarly stupid or cowardly.

The article starts with the facts that the ICC has not initiated an investigation of human rights abuses in Yemen and Syria. That is lamentable, but it is not due to a flaw in the operations of the ICC or the Rome Statute.

It is due instead to the limitations on the Court’s jurisdiction that were intentionally established in the drafting of the Rome Statute because of opposition of states like the U.S. that did not want the Court commencing investigations or criminal prosecutions against their citizens if the state did not ratify that Statute.

That Statute’s Article 12 provides, in part, that the Court has jurisdiction if certain crimes (genocide, crimes against humanity or war crimes) are committed on the territory of a state that is a party to the Rome Statute or by nationals of such a state. Neither Yemen nor Syria is such a party, as is true for all other states in the Mideast except Jordan. Thus, the Court does not have jurisdiction of such an investigation or prosecution under Article 12.

The Rome Statute’s Article 13(b) also provides jurisdiction for the Court if the U.N. Security Council, acting under Chapter VII of the U.N. Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), refers a situation of suspected crimes of that nature to the ICC even if the state where the conduct occurred or whose nationals are involved had not ratified the Rome Statute. In fact, as the New York Times article points out, the Security Council has twice done so: Sudan (Darfur) and Libya.

However, as most people know, the U.N. Charter that was drafted in 1945 at the end of World War II grants in Article 27(3)  a veto on any action by the Council to each of its five permanent members: the U.S., the United Kingdom, France, the Union of Soviet Socialist Republics [now Russia] and the Republic of China. The failure of the ICC to undertake any investigation of the Yemen situation is due to a threatened veto by the U.S. of such a referral.

With respect to Syria, the U.S. in June 2011 reportedly was seeking Russian and Chinese support for a Council referral of the situation to the Court, but that was obviously unsuccessful because no such proposal was actually advanced in the Council. In November 2011 four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” Security Council referral of Syria to the ICC also has been endorsed by the New York Times.

The next month (December 2011) the U.N. High Commissioner for Human Rights urged the Security Council to make such a referral. But nothing happened, again because of threatened vetoes by Russia and China.

If there is any “flaw” in this structure with respect to Yemen and Syria it is the veto right of the five permanent members of the Security Council. Although many, if not most, of the U.N. members that are not permanent Council members dislike the superior status and veto rights of the permanent Council members and voice various suggestions for reform of the Security Council, expert observers of the U.N. do not think that is at all likely in the near future.

In the meantime, 121 of the 192 U.N. members are now parties to the Rome Statute, and the Court’s governing body (its Assembly of States Parties) is working towards its goal of universal ratification of the Rome Statute. If and when that happened, the Court could initiate investigations and prosecutions with respect to all such parties without Security Council action.

Over the last 60-plus years the peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. The creation and operation of the International Criminal Court and other so-called ad hoc international criminal tribunals are important pieces of this effort. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further development, I am confident, will occur.

U.N. Security Council Briefing on Libya by ICC Prosecutor


Luis Moreno-Ocampo


U.N. Security Council

On May 16, 2012, the ICC’s Chief Prosecutor, Luis Moreno-Ocampo, briefed the U.N. Security Council on the status of the ICC’s investigation and prosecution of crimes committed in Libya since February 15, 2011. He did so because the Council on February 26, 2011, had referred this situation to the ICC for investigation and prosecution.

Mr. Moreno-Ocampo reported that his office has been cooperating with states, INTERPOL, NGO’s and others, including the separate U.N. Commission of Inquiry on Libya and the Libyan National Transitional Council (NTC).

The Prosecutor emphasized that the “intensity of the cooperation [between the ICC and the NTC] . . . is only increasing” and that the NTC had asked the ICC to postpone its investigation and prosecution of two individuals to enable Libya to prosecute them for the same crimes. The Prosecutor said that his office was well aware of the “primacy of national proceedings” under the Rome Statute and on June 2nd would submit his comments on the request to the Court.

The report also discussed the Prosecutor’s continuing investigation of gender crimes (rape of opponents), the alleged arbitrary arrests and enforced disappearances of presumed Gaddafi loyalist and the alleged killings, looting, property destruction and forced disappearances of suspected Gaddafi loyalists in the town of Tawergha.

In addition, the Prosecutor stated that his office had investigated alleged crimes by NATO forces, but that it had “no information to conclude that the NATO air strikes which may have resulted in civilian deaths and injury or damaged civilian objects were the result of the intentionally directing of attacks against the civilian population as such or against civilian objects.” Nor did the Prosecutor have any “information to suggest that [NATO] . . .  authorized the launching of strikes in the knowledge that such attacks would cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and directed overall military advantage anticipated.”

These conclusions regarding NATO were specifically welcomed by some of the NATO members on the Security Council (U.K., France and Germany). Russia and China, on the other hand, expressed concern that no charges had been brought against NATO leaders for some of their air strikes.

The Togo representative on the Council mentioned the need for greater cooperation between the ICC and African states and hoped that the recent visit to the African Union headquarters by the President of the ICC’s Assembly of States Parties “will enable a strengthening of ties so that the shared goal of combating the impunity of the perpetrators of heinous crime can be met.”

The most recent prior post on the ICC and Libya was on November 16, 2011 with nine comments thereto.

Ancestor’s Military Service in King George’s War

King George II

John Brown (my maternal 6th great-grandfather as Henry Louis Gates, Jr. would say) in 1745 served in the British colonial army during the reign of King George II in what was known in North America as King George’s War.[1] Let us see how that came about.

In 1740 war broke out in Europe. The pretexual issue was whether Maria Theresa was eligible to succeed to the Hapsburg throne of Austria after the death of her father, Charles VI. This issue was created by Salic or Frankish law precluding royal inheritance by a woman. Thus, this war in Europe is known as the War of the Austrian Succession. This war eventually involved most of the European powers and other issues of a more real politik nature. By 1744 France and Great Britain were on opposite sides of this war, and in that year each declared war on the other.

North America. cir. 17

At that time (1744) both Britain and France had large colonial interests in North America. Britain then in the reign of King George II, of course, had the 13 colonies[2]  plus Newfoundland, Nova Scotia, New Brunswick and Hudson’s Bay. France had New France, which extended from Isle Royale (Cape Breton Island today) in the east to the Rocky Mountains in the west and from what is now southern Ontario in the north to the Gulf of Mexico in the south.

Importantly, however, under the 1713 Treaty of Utrecht the extant of New France had been reduced with France ceding to Britain what is now Hudson’s Bay, Nova Scotia, New Brunswick, part of Maine and Newfoundland.

Isle Royale                     (Cape Breton Island)
Fortress Louisburg (model)

This loss of territory by France made Isle Royale (Cape Breton Island) very important to France as the guardian of the approach to the St. Lawrence River, which was the gateway to French Canada, and of the Grand Banks fisheries. As a result, between 1720 and 1740 France constructed the strongest fortress in North America, the walled city of Louisburg at the eastern end of Isle Royale. It became “the key and stronghold of French power” in New France.[3] It was designed and built to resist ship attacks from the sea, but as the French discovered in 1745 the hills behind the fortress made it vulnerable to bombardment by cannons on those hills.

Grand Banks of Newfoundland

For the British colonists in North America, however, Louisburg “menaced the lifeline of the New England colonies.” With this fortress, France could sweep the coast of New England and its ships with French expeditions. As a result, New England’s merchants were reluctant to risk putting their ships to sea and its fishermen were threatened from cod fishing in the Grand Banks of Newfoundland, then and now one of the richest fishing grounds in the world.[4]

Once Great Britain and France had declared war against each other in Europe in 1744, military skirmishes between them occurred in North America, primarily on the frontier between their colonies. In 1744, French forces raided the British port at Canso, Nova Scotia not far from Louisburg and another British fort, Fort St. Anne, in New York. This became known in North America as King George’s War.

These French attacks and the existence of the war in Europe provided an opportunity (or excuse) for the colonists (with British assistance) to attack the French fortress at Louisburg. William Vaughan, a local fisheries and lumber baron, persuaded the Governor of the Province of Massachusetts Bay to seek colonial legislative authorization for just such an attack. That authorization was obtained by just one vote.[5]

Colonists attack                Louisburg, 1745
Colonists capture Louisburg, 1745

In March of 1745, a Massachusetts-led colonial force of 4,200 soldiers and sailors aboard 90 ships set sail from Boston to do just that. At Canso, Nova Scotia, they were joined by an additional 16 ships under the command of British Commodore Peter Warren. John Brown was in that expedition as a captain of one of the units and participated in the successful 47-day siege and bombardment of the fortress and its capture on June 18, 1745.

The Louisburg siege and capture turned out to be the most significant military engagement of King George’s War. It strengthened the colonists’ military spirit, provided a training school for their future fighting in the Revolutionary War and gave them a new awareness of their own capabilities.[6]

William Shirley, Governor of Massachusetts Bay
Duke of Newcastle

In October 1745, the Governor of the Province of Massachusetts Bay, William Shirley, reported to the Duke of Newcastle, who was Britain’s  Secretary of State for the Southern Department, on the details of this significant military victory. In what undoubtedly was true at the time, but ironic in retrospect, the Governor concluded the report with these words:

  • “I hope that the Services of the New England troops in the Field, which seem to have equaled the Zeal of the Massachusetts Council and Assembly within their Province, for His Majesty’s Service, upon this Occasion, may be gracefully accepted by His Majesty, as a Proof of that perfect Duty and firm Loyalty which, I am persuaded, all the Colonies concerned in the reduction of this Place [the Louisburg Fortress] (but especially that of the Massachusetts Bay, for which I can more particularly answer) bear to His Majesty’s sacred Person, and to his Government.”[7]

The War of the Austrian Succession and its North American sideshow (King George’s War) lasted until 1748 when all of the parties negotiated the Treaty of Aix-la-Chapelle. Much to the consternation of the British colonists, Louisburg was returned to France under this treaty.

Louisburg Fortress (today)

The Fortress of Louisbourg is now a National Historic Site of Canada.


[1] Carol Willits Brown, William Brown–English Immigrant of Hatfield and Leicester, Massachusetts, and His Descendants c. 1669-1994 at 6 (Gateway Press; Baltimore, MD 1994).

[2] The 13 colonies were Province of New Hampshire, Province of Massachusetts Bay, Colony of Rhode Island and Providence Plantation, Connecticut Colony, Province of New York, Province of New Jersey, Province of Pennsylvania, the Lower Colonies on Delaware, Province of Maryland, Colony and Dominion of Virginia, Province of North Carolina, Province of South Carolina and Province of Georgia.

[3]  Samuel Adams Drake, The Taking of Louisburg 1745 at 13 (Boston; Lee & Shepard 1891) [“Drake”]; Fairfax Downey, Louisbourg: Key to a Continent at 1(Englewood Cliff, NJ; Prentice-Hall 1965) [“Downey”].

[4]  Drake at 46; Downey at 1.

[5] Downey at 55-57.

[6] Drake at 128.

[7] Letter, William Shirley, Governor of Massachusetts-Bay to Duke of Newcastle with journal of siege of Louisbourg (Oct. 28, 1745).

Netherlands Court Awards Monetary Damages to Palestinian for Libyan Torture

Dr. Ashraf Al Hajuj

This March a court in the Netherlands awarded 1 million euros to a Palestinian plaintiff against 12 Libyan officials for torture and inhumane treatment over eight years in a Libyan prison.

The plaintiff, Dr. Ashraf al-Hajuji, who now lives in the Netherlands, along with five Bulgarian nurses had been charged in Libya in 2000 with deliberately infecting over 400 children with HIV-AIDS. In 2004 they were convicted and sentenced to death by a firing squad.  A year later the convictions were overturned and a new trial was ordered after Bulgaria agreed to establish a fund for the families of the infected children. In December 2006, however, Dr. Hajuji and the nurses were again convicted and sentenced to death, but in July 2007 their sentences were commuted to life imprisonment after the children’s relatives agreed to accept compensation of $1 million per child. In 2007 the doctor and nurses were pardoned and released after French President Sarkozy negotiated with Col. Muammar Gaddafi . Gaddafi admitted they had suffered horrible torture in Libyan prisons.

This may be the first time another legal system has granted a civil monetary damages award to a foreigner due to violation of international human rights norms by other foreigners in a foreign country similar to the awards made by U.S. courts in civil lawsuits under the Alien Tort Statute.

In the meantime, Bulgarian prosecutors are still investigating what happened in Libya for a possible criminal prosecution of those responsible for the torture.

International Criminal Court: Basics of Its Upcoming Judicial Election

The International Criminal Court (ICC) has 18 judges, each of whom serves only one term of nine years. In December of 2011 six new judges will be elected by the Court’s governing body, the Assembly of States Parties.[1]

Aside from specified and recommended personal qualifications for these judgeships,[2] there are requirements that judges come from the current 115 States Parties, that no State may have more than one judgeship and that there be equitable geographical and gender representation on the Court. There is also a requirement that the Court have representation of the “principal legal systems of the world.”[3]

Of the six judges who will be replaced in the upcoming elections, three are female and three are male. Two are from Latin America (Brazil and Costa Rica), two from Africa (Mali and Uganda) and two from Western Europe and Other (France and the U.K.)[4]

Given the Rome Statute’s requirement for considerations of geographical and gender equity  and for certain proportions for Lists A and B judges, the upcoming elections will seek to elect up to 2 females and at least 4 males who come from the A List (at least 4) and the B List (no more than 2) from the following geographical areas:

  • Africa: 2 from 28 African States Parties (31 -3 (Botswana, Ghana and Kenya, which already are represented on the Court));
  • Latin America: 2 from 24 Latin American and Caribbean States Parties (26  – 2 (Argentina and Bolivia, which already are represented on the Court)); and
  • Western Europe & Other States Parties: 2 from 22 Western European/Other States Parties (25 – 3 (Belgium, Finland, and Germany, which already are represented on the Court)).[5]

Nominees for these six positions must come from the 115 States Parties (with no more than one nomination from each such State) during the period June 13 through September 2, 2011. Each nomination must have a statement specifying how the individual meets the personal requirements of the Rome Statute.[6]

As of June 22, 2011, there were the following four nominations:[7]

  • Judge John Bankole Thompson of Sierra Leone. He has been a Judge of the High Court of Sierra Leone and of the Trial Chamber of the Special Court for Sierra Leone. He also has been a law professor in his country and in the U.S. (University of Akron School of Law, Kent State University and Eastern Kentucky University. He holds LLB, M.A. and Ph. D. degrees in law from Cambridge University.
  • Bruno Cathala of France. He has been the ICC’s Registrar and its Director of Common Services; Deputy Registrar of the ICTY; president of two regional French courts and one of its juvenile courts. He also has been Deputy Director of a French government department for judicial protection of juveniles. He hold degrees from France’s Institutes of Higher National Defense Studies and of Higher Internal Security Studies and a post-graduate pre-PhD diploma in Private Law from the School of Law, University of Paris.
  • Chile Eboe-Osujl of Nigeria. He has been an advocate in criminal cases in the courts of Nigeria and Canada and a prosecutor at the ICTR and the Special Court for Sierra Leone. He has served as an advisor to the U.N. High Commissioner for Human Rights and to the Nigerian delegation to the ICC’s Review Conference on the crime of aggression. He has taught international criminal law at the University of Ottawa. He has special experience and expertise regarding violence against women and children.
  • Gberdao Gustave Kam of Burkina Faso. He has been an ad litem judge for the ICTR and a judge in several courts in his country. He also has served in his country’s Ministry of Justice.

The more fascinating issue of the specified and recommended personal qualifications for these positions will be discussed in a future post.

[1] See Post: The International Criminal Court: Introduction (April 28, 2011); Rome Statute, Art. 36 (1), (9); ICC, Election of six judges–December 2011,

[2] A future post will discuss the Rome Statute’s specified qualifications for judgeships as well as recommended qualifications proposed by civil society.

[3] Rome Statute, Art. 36 (7), (8)(a).

[4] International Coalition for the International Criminal Court, Information about the Nomination and Election of Six New Judges and the Prosecutor, New York, December 2011,

[5] Id.

[6]  Rome Statute, Art. 36 (4)

[7]  ICC, Election of six judges–December 2011,