The Journal of International Criminal Justice has recently published a very interesting article by Darryl Robinson titled “The Controversy over Territorial State Referrals and Reflections on ICL Discourse“. In the article, Darryl takes issue with those who criticise the practice by which the ICC Prosecutor has accepted referrals by States of situations occuring within that State. The first three situations before the ICC (the Democratic Rep. of Congo, Uganda and the Central African Republic) came to the Court in this way. In particular Darryl disputes the account (for example by Bill Schabas) which suggests that this practice is an unforeseen invention developed after the Rome Statute came into force and perhaps even an undesirable perversion of Rome Statute. An undesirable perversion in that it allows States to manipulate the Court, wrongly focusses attention on non-State actors (rather than State agents) and allows States to foist on the ICC their obligations to prosecute international crimes. The abstract of his article is as follows:
“This article examines some of the prominent critiques concerning territorial state referrals to the ICC (also known as ‘self-referrals’), in order to test and refine the arguments. Despite wide acceptance of the drafting history claim that such referrals were not contemplated in the negotiation of the Statute, the records expressly show the opposite. Critiques about the potential for political manipulation are significant, but reflect a tension inherent to all international criminal justice efforts, regardless of trigger mechanism. The concern about ‘selective externalization’ of prosecutions is compelling; however, the legal and normative implications are more subtle and multi-faceted than is commonly assumed. The article also ventures some preliminary observations about international criminal law (ICL) discourse in general. One observation is that although discourse focuses on points of disagreement, the interpretive community also implicitly absorbs assumptions that limit and shape legal debate. For example, the widespread but incorrect assumption that territorial state referrals were ‘not contemplated’ by the drafters has eclipsed the actual drafting history, and has framed the present legal debate concerning the supposed ‘innovation’. A related observation concerns the prospect of assuming a single vision or model of the Court and allowing that model to dictate interpretation. Multiple plausible models are compatible with the Statute, and open-minded assessment of the merits and implications of each is needed. Such models of the Court may include, for example, an ‘antagonistic’ model, a ‘catalyst’ model, a ‘reverse cooperation’ model and a ‘facility’ model.”
Darryl is a Canadian academic who has been intimately involved in the creation of the ICC, first as a Legal Officer in the Canadian Department of Foreign Affairs where he took part in the negotiations of the Rome Statute , and then as adviser to the ICC Prosecutor. He is also a friend of EJIL:Talk! and dia a great job blogging for us a the ICC Review Conference in Kampala in the summer of 2010 (see here). Given his background, Darryl is in as good a position to know, as anyone, whether self referrals were contemplated during the drafting of the Statute. I must say that I find his account to be compelling. These disputations regarding the intention of the parties highlight why reliance on intention of the parties in treaty interpretation is and ought to be a (very) marginal mode of treaty interpretation. Often, the records are fragmentary and while one may have records of some (usually a minority) of the participants, evidence of the intention of other participants is missing. Also, there is usually no common intention with regard to the important points of disagreements that arise after the treaty is drafted. I suspect that it is very rarely the case that a lack of clarity in the text is due to the fact that the lawyers who drafted it failed to faithfully record a clear common intention of the framers.
A more important point highlighted by Darryl’s piece is that if self referrals were not only contemplated by the drafters but also a legitimate interpretation of the Rome Statute, it raises the question whether the Rome Statute is really a court of last resort as is often claimed in the literature. The assumption has often been that, because of the concept of complementarity, the ICC is only there for cases that national systems are incapable of handling. Indeed, there is now talk that the Rome Statute created not just a Court but a “Rome Statute system” of international criminal law in which there is an expectation that domestic legal systems will have the responsibility for handling the bulk of cases. Indeed, this expectation is almost transformed into an obligation. States are being urged to fulfill this expectation/obligation of complementarity by adopting the necessary national instruments and there is talk of positive complementarity with the ICC itself helping domestic actors to fulfill their role in this “Rome Statute system.” Under this system, the ICC is just a court of last resort, States have to do their own bits and act wrongly if they don’t.
But if Darryl is right regarding self-referrals, there would be an alternative way of viewing the Court. There would be no requirement for States to act domestically. It would be acceptable, in the face of international crimes, for States to act not nationally but internationally, i.e simply triggering ICC jurisdiction. Indeed he makes the point that there are many possible (indeed plausible) models as to how the Court should operate though he doesn’t himself endorse any particular model. Of course, the model by which States externalize their duty to prosecute international crimes would raise many difficulties. But Darryl’s piece highlights that though the practical difficulties are very real there isn’t a legal difficulty conceiving of the ICC not as a court of last resort but rather acts as agent of individual States.