December 2003

A Big Step Forward for International Justice
By Antonio Cassese

The establishment of the International Criminal Court is in many respects a deeply innovative, even a revolutionary step, which must be seen in its proper context: the emerging vision of the international community.

It is widely accepted that two models of international legal relations exist: a traditional one, which one could term "Grotian"after the 17^th-century Dutch scholar Hugo Grotius, and a new model which could be described as "Kantian". (The descriptions are naturally shorthand, but are in keeping with traditional categories used by political scientists.) These two models are now vying for primacy in the international community.

A System Based on States

The Grotian model hinges on a few general concepts. The first is that States are the exclusive or almost exclusive actors on the international scene. These abstract entities, often of great size, embody and articulate their own particular interests - which are not necessarily the same as those of the individuals on whose behalf they should be acting: it is States that are the interlocutors in international dealings. The second notion is that respect for State sovereignty is the pivotal element of all international relations. The third is the concept of reciprocity: the idea that all interstate relations are based on self-interest, and that States engage in international legal dealings primarily to promote their own interests by reconciling them with those of any other State they wish to engage with.

Only when the interest of many States coincide can general legal standards - that is, standards applicable to all States - emerge. Examples of such general rules are those on diplomatic or consular relations, on international treaties, on the freedom of the high seas, on the continental shelf, on piracy, and so on. Since the conflicting interests of States have made it impossible to set up common institutions entrusted with the three traditional functions each State fulfils within its own national legal system (law-making, judicial settlement of disputes, and enforcement of legal standards), the discharge of these functions is left to each member of the international community.

Consequently, unilateralism prevails. It falls to each State to establish when it is interested in setting new legal standards, how it intends to settle disputes with other States, and whether or not to use force to ensure that its own interests win out.

The New Model of International Community

The Kantian model by contrast depends on a very different set of assumptions. First is the notion that although States are still the main players on the international scene, individuals are and should increasingly be the focus of international relations: States should primarily act as their representatives. In the past, it was only through States that individuals could come into contact, as it were, with interstate relations. Now they have become (at least partially) subjects of international dealings in their own right, with an increasing say in the way these dealings are conducted.

A second feature of the Kantian model is the belief in a core of universal values (peace, respect for human rights, self-determination of peoples) that all members of the international community must respect. In other words, alongside national interests and reciprocal relations among States, there also exist common interests and concerns that transcend each single State and unite the whole of mankind. Indeed, the need to acknowledge these common interests and concerns has given rise to the notion of community obligations and community rights. These are obligations (for instance, not to attack other States, not to trample upon fundamental human rights of individuals, not to oppress peoples) that each State owes to all other States. By the same token, each State is entitled to demand that all other States respect these obligations, and the basic values they are intended to safeguard, regardless of their national self-interest.

The emergence in the world community of a set of basic values that no one may disregard has resulted in the birth, on a supranational level, of a phenomenon that has been common to all national legal systems since time immemorial: a hierarchy of legal standards, whereby some general rules (known as peremptory norms or jus cogens) are of such overarching importance that States are not allowed to deviate from them in their private dealings.

It follows from this new scheme that public interests gradually are taking shape and often prevail over private interests. It also follows that multilateralism tends to obtain. States no longer have unfettered freedom to regulate their relations; peremptory norms now constitute a major stumbling block to that freedom. Even more significantly, States are no longer allowed to make unilateral decisions about how to react to alleged breaches of legal standards by other States. Nor, it follows, are they permitted to employ forcible means (for instance, armed reprisals) for imposing compliance with those legal standards.

Uneasy Co-Existence

This new Kantian model is increasingly influential, but it has not yet established itself as a fully-fledged and coherent system of international relations. Old concepts still resist and place restraints on these new ideas. The resilience of old legal institutions, and of the ideologies and outlooks that underpin them, combined with the weakness of the new scheme, mean that the two systems I have described co-exist uneasily. Most significantly, a central mechanism for law-making or law enforcement is still lacking.

True, there exist multilateral forums where States may publicly discuss and try to reconcile their interests - but these fall far short of being central institutions for the international community. The attempt to entrust a central body, the United Nations Security Council, with the task of ensuring the maintenance of international peace and security, through the use of force if necessary, has only been a partial success. In addition, the proclamation of human rights has not been matched by the creation of any universal institution capable of ensuring that States comply with the standards they are committed to observe.

Such mechanisms exist only at the regional level (in Europe and Latin America) and are still filtered through national legal systems. For instance, the decisions of the European Court of Human Rights and the Inter-American Court of Human Rights can be activated by individuals and are binding upon States; however, they do not produce immediate and direct legal effects within the national legal systems of the States concerned. International decisions, although they may be promoted or triggered by individuals, do not reach them directly, but stop at the State level.

In areas other than that of human rights, community rights have been proclaimed, but no institutional mechanism has been established for their implementation (think for instance of the international protection of humanitarian law applicable in time of armed conflicts). Their vindication is still left to individual States, which are expected to be motivated by community interests, but unfortunately still tend to be driven by self-interest and are therefore loath to act on the basis of universal values.

It is also clear that traditional legal devices intended to protect sovereign States from any outside scrutiny are still powerful, although some limitations on their scope are emerging. I am referring here, in particular, to the concept of State immunity from the jurisdiction of foreign courts, and to the concept that State agents acting in their official capacity may not be held individually accountable, in foreign or international forums, for breaches of international law they may have committed.

The international community thus finds itself in a transitional period, where new approaches must grapple with well-embedded traditions. It is within this context that one must appraise the importance and the enormous potential of the International Criminal Court.

Giving Individuals Their Rightful Place

International crimes are committed by individuals, normally acting in an official capacity as the agent of a state: military commanders, servicemen, police officers, government ministers, etc. Absent any central enforcement mechanism in the world community, and given that at least the most glaring breaches of international law must be punished, the International Criminal Court is called upon to ensure that the international community as a whole effectively reacts to such crimes. The Court is empowered to respond not by attacking States, but by engaging with the individuals involved: it brings to trial the alleged authors of the breaches of the law. Thus, some of the most important international values (such as respect for human rights) are effectively vindicated, and by the same token, community rights are upheld.

The International Criminal Court is destined to flesh out and bring into effect those peremptory norms of international law which safeguard such fundamental values as human dignity, the respect for life and limb of innocent persons, and the protection of ethnic, religious or racial groups. Also, individuals come to play the central role that befits them: it is individuals who constitute the delinquents, the victims or the witnesses, respectively. Perpetrators and victims thus acquire their rightful place in the world community.

In short, the International Criminal Court is intended to enhance and bring to fruition the modern, Kantian model of the international community. It serves both as a practical and symbolic articulation of that scheme, and as a powerful push to its full realization. The Court is intended to sanction the idea that the use of force must be curtailed as much as possible, both in international and internal relations; and that whenever individuals resort to violence that is contrary to some fundamental legal standards of the world community, they must be held to account.

While the traditional international community had as its linchpin the idea of the unilateral pursuit by each State of its own interests, the International Criminal Court aims at bringing to the fore and actuating the public and collective interest that exists in repressing major deviations from agreed standards of behaviour.

It is worth emphasizing that the International Criminal Court is more advanced than the European and the Inter-American human rights courts, mentioned above. Unlike those two courts, which are regional in character, the ICC is universal (or at least potentially universal); in addition, it breaks the veil of State personality, in that it reaches directly to individuals, either as perpetrators, victims or witnesses. Furthermore, the Statute of the ICC has swept aside all the traditional immunities (both national and international, personal and functional) that were intended to shield State officials from outside scrutiny and prosecution. These officials are now openly subject to the most penetrating international exposure, that which takes place in an international court of law.

The combination of the demise of immunities with the notion of command responsibility (whereby the supreme military or civilian authorities of a State may be held criminally liable for crimes perpetrated by their subordinates, it they failed to prevent or repress those crimes) marks the end of traditional impunity. It is indeed this innovative step that scares so many States and makes them unwilling to ratify the court's statute.

The Balance Between National and Global

Another significant and novel feature of the Court is that it was conceived as an instrument for harmonizing national and international criminal justice (this is the first time that an international criminal tribunal has been constructed in this way, though existing international courts of human rights are similarly "subsidiary" to national courts). Prosecution and punishment of serious offences against human dignity are still entrusted to the national or the territorial State. Territoriality and nationality remain central concepts in the international community, although for all their merits they reflect old values: the bonds of blood and territory.

Nevertheless, the establishment of the International Criminal Court proclaims that when territorial and national mechanisms fail to secure justice, it is the international community as a whole that must act - through a central judicial body, the ICC. The Court is not a substitute for active and efficient national criminal courts. On the contrary, it is intended to constitute a powerful incentive to national courts to institute proceedings against alleged criminals. The ICC only steps in when those national courts prove unwilling or unable to act.

In these ways, the ICC marks a significant step towards the realization of a new vision of the world community. It shows that economic self-interest, nationalism and the unilateral formulation of one's own interests - or of one's own way of interpreting and promoting compliance with international standards - are no longer the defining characteristics of international dealings in the world community. While these are still significant, no less crucial are the role of universal values and the need to enforce respect for them though a central body capable of administering justice impartially, on behalf of the whole community.

The Most Effective Way to Fight Atrocities

One would be naïve, however, to think that the setting up of the International Criminal Court will put an end to international criminality. The world community will not become a bed of roses by judicial fiat. For one thing, some old sovereignty-oriented notions continue to hold sway, as discussed above. For another, this new international institution will need the support and cooperation of other institutions and, most significantly, of States themselves, the very entities it is destined on occasion to supplant.

It suffices to draw attention to just one feature of the Court's functioning. The Court is called upon to administer justice over horrendous crimes whenever the competent State authorities are "unwilling or unable" to prosecute those crimes. It follows that before pronouncing on a case, the Court must first establish that the State that in principle could deal with the matter in fact shuns justice or is utterly unable to dispense justice. In other words, the ICC must first pass a negative judgment on that State. However, once the Court has thus attached a negative label to the State in question, how prepared will that State be to cooperate with it by providing evidence, executing searches or seizures, arresting suspects, etc.? This is just one of the major stumbling blocks that will challenge the Court, and with which it will have to come to grips.

In a still fragmented and split world community, it is both logical and consistent to assign first of all to States' own national courts the power (and the duty) to bring to trial and punish persons alleged to be responsible for intolerable breaches of internationally agreed values. However, in carrying out this role, national courts should act as 'organs of the world community'. That is to say, they should operate not on behalf of their own authorities but in the name and on behalf of the whole international community. To be sure, resort to national courts is not free from deficiencies, if only because those courts often tend to protect national State agents responsible for serious crimes. Similarly, other available means of reacting to atrocities and gross violations of human rights - Truth and Reconciliation Commissions, international criminal tribunals or mixed or 'internationalized'courts - are far from providing a definitive answer to the innumerable problems of international justice. The truth of the matter is that none of these avenues is flawless.

Probably the best response to atrocities lies in a prudent and well thought-out combination of various approaches, seen not as alternatives but as a joint reaction to the appalling suffering we are obliged to witness every day, with a deep sense of indignation. Let us not forget that international criminal law is a branch of law that, more than any other, is about human folly, human wickedness, human aggressiveness. It deals with the darkest side of our nature. It also deals with the way societies organize themselves to stem violence and viciousness as much as possible. Clearly, given the magnitude of the task, no single response may suffice. Instead, a broad array of responses, each tailored to specific circumstances, is needed effectively to fight international criminality.

Antonio Cassese was the first President of the International Criminal Tribunal for the Former Yugoslavia. He is Professor of International Law at the University of Florence and Editor-in-Chief of the Journal of International Criminal Justice.