| December 2003 How
Activists Shaped the Court The establishment of the International Criminal Court is the greatest advance in international law of the last decade. Though ultimately it was states that brought the court into being by ratifying its statute, the Court would not have emerged in the way it did without the active participation of groups and individuals from the realm of global civil society. Indeed, the development of a new conception of international law based on the protection of individuals, which the court embodies, and the emergence of a global civil society are processes that are intimately connected. An examination of the role of global civil society in the development of the International Criminal Court can shed light on the relationship between law-making and political participation in today’s world. The notion of civil society has a long history – one that has always been bound up with the notion of rules to protect citizens. The term goes back to ancient Rome (societas civilis), but was used particularly in the Enlightenment to express the idea that a ruler did not have a divine right to do with his subjects as he pleased; rather, people came together voluntarily and negotiated a hypothetical social contract to form a civil society, in which the rights and obligations of the citizens and the rights and obligations of the ruler were clearly outlined. With the exception of Kant, the enlightenment thinkers thought of this rule-bound society only in national terms. However, the post-World War II notion of universal human rights, coupled with a thickening network of international rules directly affecting citizens, has given birth to the utopia of a global rule-bound society. Hence, the idea of global civil society is historically connected with the ideas behind humanitarian and human rights law. The opposite connection is less obvious, but the history of ‘international humanitarian law’, or ‘the rules of war’, demonstrates how, not just in the late twentieth century, but historically, international law has been much more a product of the activities of people outside government than is commonly accepted. Almost every significant treaty in international humanitarian law originates with the International Committee of the Red Cross. In a recent article, Kenneth Anderson asked, “Who owns the rules of war?” My answer would be: global civil society should own, or at least co-own, the rules of war, because without the actors in global civil society, there would be no rules, just war. The Roots of the International Criminal Court The idea of an international criminal court was first proposed by Gustave Moynier of Switzerland, one of the founders of the International Committee of the Red Cross, in 1872. The first humanitarian treaty initiated by the ICRC, now superseded by subsequent treaties, was the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864. While the Convention was signed by a large number of ‘civilised nations’ at the time, members of the emerging Red Cross movement found to their horror that it was widely ignored, and that atrocities were committed by both sides, in the Franco-Prussian War in 1870. While many argued at the time that if state practice would not comply with the rules, the rules might as well be abolished, Moynier took the opposite position. He argued that the Convention was valid, but needed a complement: the establishment of an international criminal court to deter violations of the Convention, and to bring to justice anyone responsible for such violations. Enthusiastic as they had been about the original Geneva Convention, states took virtually no notice of Moynier’s new proposal, and even fellow international lawyers responded sceptically. The proposal was shelved. Moynier’s proposal undoubtedly had its imperfections. Nevertheless, he can be considered as the founding father of the powerful – but to states, threatening - idea of taking the power to judge certain crimes away from (warring) states, and putting it into the hands of an international tribunal. After a short-lived attempt to institute an international criminal court after World War II fell victim to Cold War politics, the idea was kept alive by organisations like the International Law Association and the World Federalist Movement, and by a handful of legal scholars. One of those scholars was the American Robert Woetzel. While he went on to author a number of publications on international criminal law, his biggest contribution to the birth of the ICC was probably his lifelong friendship with Trinidadian fellow Oxford student Arthur Robinson. Robinson eventually became executive director of the – largely dormant – Foundation for an International Criminal Court, and when he became Prime Minister of Trinidad and Tobago in 1989, he proposed the establishment of an international criminal court to the General Assembly. It received a mixed reception and was referred to the International Law Commission, where it might have languished for decades if not for the ethnic cleansing in Yugoslavia and the genocide in Rwanda, the public outrage and the subsequent Security Council decisions to establish ad hoc tribunals for Yugoslavia and Rwanda. Civil Society Mobilizes for the Court In 1995, the Coalition for an International Criminal Court (CICC) was founded, bringing together organizations and individuals who supported the establishment of a strong and independent ICC. In the following years, when the negotiations for an ICC were getting serious, the Coalition and its members made a strong effort at the national and sometimes even at the local level to promote the Court in the media. Big-membership organisations like Amnesty International and the World Federalist Movement, and some of the churches including the Quakers and Mennonites, disseminated the ideas behind the Court to their millions of members. At the culmination of the negotiations on the Court at the Rome conference in June-July 1998, no fewer than three daily news teams set up camp, one of which, On The Record, was also e-mailed to about 4,000 subscribers. While it would be a gross exaggeration to suggest that the population of the world was aware of the negotiations for an international criminal court, the involvement of global civil society did succeed in raising awareness far beyond the small circle of diplomats who were professionally involved. The efforts of global civil society went beyond just propagandising the Court to a passive audience, however. At the same time, a great deal of specialist documentation was produced by individuals and organisations involved in the ICC process. This took two main forms: journal articles in especially legal journals by individuals and reports by NGOs. Both had the primary aim of informing and influencing a specialist public of NGOs, academics, and state representatives on specific sub-themes, promoting certain alternatives over others with reference to precedent, legal argument, or political realities. Civil society groups also organized countless conferences and meetings around the world – contributing substantially to a global specialist debate on the court and international justice. Civil society proposals were frequently more daring than those emerging from national governments, and many left a lasting imprint on the court, as discussed further below. As the negotiations, which had been little more than exchanges of views at the preparatory committee meetings, reached their climax in Rome, the most important thing global civil society contributed to the process was transparency. Traditionally, international law-making has occurred in complete secrecy; all that became available to the public was the final product – and sometimes, there were also secret treaties. It is unlikely that international negotiations will ever be entirely open, but the Coalition for an International Criminal Court took the potential for making international negotiations transparent to its limits. It had a highly developed system of twelve shadow teams to follow negotiations on different parts of the Statute, they debriefed friendly state delegates after closed meetings, and they kept ‘virtual vote’ tallies on crucial issues. They then sent this information to thousands of national activists by e-mail, and posted it on their website. Thus, an interested citizen with an Internet connection could almost exactly follow which country took which views on which issues on a daily basis. Incidentally, this also levelled the playing field for poor countries, whose mostly small delegations could only follow every aspect of the negotiations thanks to the NGOs. Much of the funding sought by the Coalition for an ICC went into taking more Southern NGOs and academic experts to the negotiations in New York and Rome. A number of countries, including Bosnia, Trinidad and Tobago, Sierra Leone, Senegal, Burundi, and Congo, relied on a technical assistance programme by the NGO No Peace Without Justice to augment the size and expertise of their delegations. Thus, global civil society involvement strengthened the involvement of people from small and poor countries in the negotiations, both on their own end and in the official negotiations. Contributions to the Outcome The global civil society groups and individuals who were interested in the ICC included lawyers, human rights activists, women’s groups, peace groups and religious groups from all over the world . A number of features of the statute for an ICC were demonstrably influenced or determined by the involvement of global civil society actors. The original International Law Commission draft that was the basis for the ICC negotiations listed only two ways in which an investigation could be initiated (or ‘triggered’, as it came to be called). States parties could lodge a complaint, alleging that a crime had been committed, or the UN Security Council could refer a matter to the Court. Unlike in domestic criminal law systems, the Court’s prosecutor could not institute any investigations himself or herself. The state complaints procedure had already proved to be a dead letter in various human rights treaties. The Security Council route was an even bigger hurdle, and would have led to a paralysed or politicised court, only able to conduct inquiries sanctioned by the five permanent members. The NGOs and individuals constituting the Coalition for an ICC were therefore united in insisting on a third ‘trigger’: the prosecutor should be able to institute his or her own proceedings. In fact, this independence of the prosecutor was the single biggest issue on the agenda of the Coalition and many of its constituent organisations. Elsewhere I have described at greater length the strategies and actions taken by the CICC in order to get an independent prosecutor. While it is impossible to say for certain that it was the civil society campaign which tipped the balance in favour of the independent prosecutor, this is the strong belief of many activists, shared by some state delegates, including the Argentine delegate who coordinated this part of the negotiations and the head of the Dutch delegation, who called this ‘the most important point on which the NGOs booked success’. Another focus point for members of the CICC was the position of victims and witnesses in the Court. Three coalitions within the coalition, the impressive Women’s Caucus and the smaller Children’s Caucus and Victims’ Rights Working Group worked together with Redress, Human Rights Watch and the European Law Students Association, to improve the position of witnesses in the proceedings of the Court. They worked to afford victims better protection, the right to have their own say, instead of being just an instrument of the prosecution, and the right to reparation. According to two state delegates who later wrote on the subject, they played a vital role in the formulation of the relevant articles. An early paper by the World Federalist Movement summarised state and NGO positions on how the Court might be financed, examined precedents concerning other international courts, and made a concrete proposal, stressing that, while it might seem like a minor concern in negotiations, the Court would not be able to function successfully without adequate financing. This paper appeared more than a year before states or the UN Secretariat produced anything on finance, and its usefulness was commented on by a number of state delegates. Its suggestion that means-tested state contributions, in accordance with UN standards, could be topped up by a voluntary fund to which states, individuals, NGOs and even corporations could make donation, formed the basis for the later, somewhat more complex, provisions on the financing of the Court. Taking Sex Crimes Seriously One of the more controversial contributions of global civil society concerned the gender aspects of the Statute. In this case, unlike many others, civil society groups could be found advocating mutually opposing positions. The Women’s Caucus for Gender Justice was formed in February 1997 on the initiative of a small group of women’s rights activists, to improve on the original ILC draft, which paid no explicit attention to the gender dimensions of any of the areas of law it covered. It quickly grew to be a coalition within a coalition, with more than 300 member organisations by the time of the Rome conference. Its concerns included the definition of gender, a reference to gender in a general non-discrimination clause, a gender dimension to the definition of slavery, the inclusion of persecution on the basis of gender as a component of crimes against humanity, and protection for and gender-sensitive treatment of victims and witnesses. All of these concerns came to be reflected in the final Statute in a way that either completely or partially satisfied the Women’s Caucus. The most contentious of their aims was the adoption of a subparagraph on ‘gender-specific crimes’ in the Statute’s definition of crimes, which included ‘forced pregnancy: a practice which had occurred as part of a programme of ethnic cleansing in the war in Bosnia, of raping a woman and then keeping her confined so she is forced to carry the baby to full term. Pro-family groups like REAL Women of Canada voiced objections to the inclusion of ‘forced pregnancy’ as a war crime, arguing that the term had been used by the American Civil Liberties Union in a US lawsuit as meaning ‘forcing women to continue pregnancy against their will for the purpose of serving the state’s declared interest in preserving unborn human life’, i.e. to describe an anti-abortion law or policy. They also generally opposed the use of the term ‘gender’ in the Statute, predicated on the idea that it might ‘provide protection for “other genders” including homosexuals, lesbians, bisexuals, transgendered, etc.’ Both
groups had allies among states. The negotiating delegates did adopt
a separate sub-paragraph on gender-specific crimes, including ‘rape,
sexual slavery, forced prostitution, forced pregnancy, forced sterilization
and other sexual or gender violence or abuse’, which followed
exactly the text of the Women’s Caucus’ proposal. The
forced pregnancy part of this clause became the most contentious
gender issue at Rome. However, its preservation, over strong opposition
from the Vatican and Arab states, probably owed more to the strong
advocacy of Bosnia, which had the moral high ground on this issue,
and the patient but tough negotiating by Australia, than to the
Women’s Caucus. The Debate Over Civil Society As
I have described above, the idea of an International Criminal Court
originated within civil society, with one of the founding fathers
of the Red Cross. More recently, in the period 1995-1998, global
civil society involvement publicised the fact that an ICC was being
negotiated, fostered global debate, developed alternative proposals,
strengthened Southern participation, and made the process of negotiations
much more transparent to interested observers. It helped to produce
a Court that is independent, gender-sensitive, sensitive to the
needs of victims, and adequately financed. Yet some, including Ken
Anderson, fear and loath global civil society involvement, arguing
that it ‘privileges internationalism’ at the expense of
‘democratic sovereignty’. This is, however, a very narrow and formalistic way of thinking about democracy only as representative democracy and majority rule. In theory, the electorate of a particular country might influence its delegates’ position in international negotiations; in practice, we know it does not. If I feel strongly about a particular issue, say the International Criminal Court, the way to do something about it is not merely to vote, which is most unlikely to make a difference to my pet issue, but to found or join an organisation that shares my views, and become active myself. This is what global civil society has delivered: not representation, but participation. In practice, this participation still belongs primarily to an exclusive club: members of the English-speaking, university-educated, Internet-connected, plane-riding global elite will find it much easier to participate than others. These are real and very serious shortcomings of global civil society, which its proponents should work much harder to overcome. But those who mourn the perceived loss of democracy in international law-making are barking up the wrong tree. The real problem they appear to have is not just with the fact that there are new actors in international law-making, but rather with the fact that there is more international law being made, i.e. the perceived loss of sovereignty. There is no doubt that most people in global civil society, and human rights activists in particular, like to move international law along in ways that constrain the state’s autonomy to impose certain types of policies on its citizens. Kenneth Anderson writes that this worldview ‘thus promotes, embedded in an agenda of human rights and the laws of war, the ceding of sovereignty, even democratic sovereignty, as the most virtuous act that a state can perform on behalf of its citizens.’ I do believe exactly that: that a state’s absolute sovereignty is a very dangerous thing, and that ceding some of it is indeed the most virtuous gift to one’s citizens. In the twentieth century, tens of millions of people have been killed by representatives of their own government, and hundreds of millions more have been tortured, stolen from, evicted, starved. Some of these governments were flawed democracies, too. No international institution, fallible though they might be, has ever done anything like what states have done to their own citizens. The essence of the ‘ethical project’ of the CICC campaign can be described in terms of George Scelle’s doctrine, which holds that, in international law-making, each state has a double function: to defend its own national interests but also the global public interest, or interest of humanity. It was the continual strengthening and encouragement of states, and tendencies within states, towards the latter interest that was the contribution of global civil society to the ICC process. Global civil society cannot bully states into submission: it simply does not have the means. But it can help states to see an enlightened interest beyond the immunity from international law that will always appear to be of more immediate benefit. States that experienced gross human rights violations very recently, such as Nigeria, Serbia, and Sierra Leone, have ratified the Statute for an ICC. They were prepared to sign away a small but essential part of their sovereign power in order to protect their future citizens against a possible situation where they may again become unwilling or unable to prosecute genocide, war crimes, and crimes against humanity committed by their citizens or on their territory. It is unfortunate that a minority of very big and powerful states including China, India, and the United States are not – yet - prepared to take out this insurance with the international community against their own future. But just as the Red Cross carried on developing rules of war after its first treaty was widely flouted, global civil society must continue to try and convince these states with the only weapon it has: the use of reason. Marlies Glasius is a researcher with the Centre for the Study of Global Governance, London School of Economics and Political Science. She is managing editor of the Global Civil Society Yearbook
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