INTERNATIONAL CRIMINAL JUSTICE:THREAT OR STRENGTH TO STATE SOVEREIGNTY?

• Author: Amvane, Gabriel

I INTRODUCTION

The debate between sovereignty and international institutions is not really new. Sovereignty is one of the most important principles in international law, 'a constitutive rule of international society'. (1) If international law can be defined as a set of norms governing relations between independent States, (2) sovereignty is exactly what characterises a State. The modern State was created with the Treaties of Westphalia (3) in 1648. Europe then was often in war, and the 'Westphalia system' aimed to end one of those numerous religious wars in Europe. To achieve that purpose, parties to the treaties established a system that would help prevent future wars, ie by considering each State as sovereign. This meant each State possessed exclusive authority to regulate its internal affairs, and no State could intervene in the internal affairs of another. As Chris Brown summarised it, in the Westphalia system 'rulers acknowledge no equal at home, no superior abroad.... [S]tates are legally equal... which means that non-intervention is central--no sovereign has the right to intervene in the internal affairs of another'. (4) He added 'rulers were sovereign in so far as they accepted no internal equals and no external superiors, and to get to this point the claim of universal rulers had to be undermined.... [T]he norm of non-intervention is central'. (5) Though officials and scholars of the Global South have updated the Westphalia system in order to better integrate their interests, (6) they have not, however, generally called into question the sovereignty of the State. Sovereign States then were accustomed to functioning without any interference from abroad.

However, while the Westphalia system provided States with 'absolute authority to regulate their domestic affairs,' (7) international society became more and more concerned over the rights of individuals at the expense of governments, protecting the weaker against the wills of the stronger. (8) The interest in human rights even contributed to a new form of international norms, known as jus cogens or peremptory norms of general international law. (9) Some scholars even consider that the move to human rights finally led to a 'Real New World Order'. (10)

As this move could not remain purely theoretical, measures were taken to ensure that perpetrators of grave violations of human rights would be tried and punished, and internationals tribunals were progressively established. The Charter of the first post-WWII international criminal tribunal classified these grave crimes in three categories: Crimes against Peace, War Crimes, and Crimes against Humanity. (11)

The Statute of International Criminal Court redefined crimes related to mass violations of human rights. These crimes include: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. (12) While the WWII tribunals had jurisdiction over specific cases related to specific events and in limited geographic areas, the International Criminal Court ('ICC') has a broader jurisdiction as it would be seen in the following developments. The Rome Statute on the ICC established mechanisms for extending the jurisdiction of the court over States that had not ratified or even signed the treaty. This obviously raised criticisms on the effects of such mechanisms on State sovereignty, since sovereign States were accustomed to functioning in a Westphalian system where no international tribunal or court could judge their acts. (13) While most States agreed with the ICC's jurisdiction, others rejected such jurisdiction, and State sovereignty is often the main argument of this rejection. (14) However, as the judges of the Nuremberg Tribunal asserted, international tribunals and courts judge 'men', and 'not abstract entities'. (15) In doing so, international criminal justice is able to prevent individuals taking State sovereignty hostage for their own personal selfish interests; international criminal justice could thus protect State sovereignty.

Since a major concern regarding the relation between sovereignty and international criminal justice is the possibility to refer to the ICC situations involving the nationals of States that have not consented to the Rome Statute, this article will mainly examine the relation between sovereignty and ICC, and not all international criminal tribunals, nor the question of universal jurisdiction before national courts. The first part of the article will analyse the argument that referring situations involving nationals of States that have not consented to the Rome Statute constitutes a violation of their sovereignty. The proponents of this thesis often refer to the voluntarism recognised by article 34 of the Vienna Convention on the Law of Treaties 1969 (16) ('VCLT'). This provision will therefore be examined. After that, the article will focus on the referrals that have invoked article 13 of the Rome Statute, and examine how each of them may have affected State sovereignty. Finally, the article will seek. to demonstrate that instead of violating it, international criminal justice can, in some cases, strengthen State sovereignty.

II THE VOLUNTARISM OF ARTICLE 34 OFTHE I969VIENNA CONVENTION

Article 34 of the VCLT states: 'A treaty does not create either obligations or rights for a third State without its consent'. (17) By way of elaboration, article 35 of the VCLT provides, '[a]n obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing'. This principle was already established in the general formula pacta tertiis nec nocent nec prosunt. The VCLT defines a 'third State' as a State that is 'not a party to' a treaty and defines a 'party' to a treaty as 'a State which has consented to be bound by the treaty and for which the treaty is in force'. (18) It follows that a third State means a State which has not consented to be bound by a treaty and for which the treaty is not in force. In the case of the International Criminal Court, this would include a State that has not ratified or acceded to the Rome Statute.

The principle according to which a treaty does not bind a third party has never been generally contested. On the contrary, international law and international tribunals have always been firm in supporting this principle. In the Island of Palmas case, the US invoked recognition of Spain's title to the island in treaties concluded by Spain with other States. Arbitrator Max Huber concluded that '[i]t appears further to be evident that Treaties concluded by Spain with third Powers recognizing her sovereignty over the "Philippines" could not be binding upon the Netherlands'. (19) In another passage of the same arbitration, he asserted that '[i]t is evident that whatever may be the right construction of a treaty, it cannot be interpreted as disposing of the rights of independent third Powers'. (20) The Permanent Court of International Justice, for example, ruled that '[a] treaty only creates law as between the States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States'. (21) In a more recent case opposing Nicaragua to Colombia, the International Court of Justice asserted that in any event treaties concluded between Colombia and States other than Nicaragua 'are res inter alios acta with regard to Nicaragua'. (22) Having considered the general position regarding third States under international law, it is important then to examine the doctrine of voluntarism to better comprehend the debate between State sovereignty and a referral to the ICC without State consent.

1. Sovereignty in voluntarist doctrine

   Proponents of voluntarism maintain the principle according to which, a State cannot be bound by international law in the absence of an expression of its will; international law results from the will of States. To provide deep roots to the theory, it has been asserted that '[v]oluntarism follows in the tradition of Hobbes: "auctoritas, non Veritas facit legem". Law is equated with the will of the law-maker, who decides upon the content and legal character of a norm'. (23) In doctrine, the advent of voluntarism in international law was perceived as the final step in the 'victory of positivist international law over natural law doctrines'. (24) The theory of natural law coexisting or being above positive law was accepted by the so-called founding fathers of international law. As Tunkin (25) reminded, 'according to Grotius, all law, including international law is partially natural law and partially law created by will (jus voluntarium)... the latter receive the appellation of "positive law" from subsequent writers'. Vattel also distinguished natural law from 'positive' law established by the general consent of people. (26) In his Pure Theory of Law, Hans Kelsen aimed to clear law from all external elements, whether political, social or anything related to natural law. (27) For Kelsen, positive law was the focus. Tunkin thought that natural theory was necessary as long as feudal lords and princes had absolute powers, but with the revolution of the bourgeois, natural law theory could be 'rejected as having performed its service', and positive law, proceeding from agreement between States, could then become the sole law. For Tunkin, 'this doctrine proceeded from the fact that since sovereign states are entering into international relations, under these conditions the sole mode of creating norms binding subjects of law is agreement between them'. State will became the mode of creation of law. Triepel considered that 'the legal nature of agreement as a means of creating norms of international law consists in the fact that identical wills of states are fused into a "common will"'. (28) Anzilotti also considered State will as the mode of creation of...