January 27, 2005
The ICC as an important partner in enhancing global justice
During the Cold War, security was essentially defined in military terms, as the avoidance of a direct military danger.
When the Cold War ended, it was genererally thought that a new international era was about to begin. Liberated from the overarching emphasis on military security,international diplomacy turned its efforst and attention to those challenges that were of importance to everybody’s daily life.
by Prof. Dr. W. Bruggeman
1. Introduction
During the Cold War, security was essentially defined in military terms, as the avoidance of a direct military danger. When the Cold War ended, it was genererally thought that a new international era was about to begin. Liberated from the overarching emphasis on military security,international diplomacy turned its efforst and attention to those challenges that were of importance to everybody’s daily life.The post Cold War environment is one of increasingly open borders. Flows of trade and investment, the development of technology and the spread of democracy have brought growing freedom and prosperity to many people. Inspite of these encouraging trends, many problems remain unsolved and some got even worse.
Specific politico-military challenges stand out: regions of chronic tension and long-standing disputes and conflicts, failed states and civil wars, excessive militarization, terrorrism and organised crime.
Regional conflicts continue to foster instability, disrupt economic activity and reduce opportunities for the people concerned. In many parts of the world bad governance, civil conflict and the easy availibility of small arms have led to a weakening of state and social structures. Corruption, abuse op power, weak institutions and lack of accountability corrode states from within and contribute to regional insecurity. Conflict not only destroys infrastructure, including social infrastructure; it also encourages criminality, deters investment and makes normal economic activity impossible. A number of countries and regions risk becoming caught in a downward spiral of conflict, insecurity and poverty. A renewal of ethnic conflicts could plunge many countries and regions into a state of anarchy.
In addition international terrorism and proliferation of weapons of mass destruction remain nowadays the single most important threat to peace and security among nations and worldwide.
In a world of global threats, global markets and global media, our security and prosperity depend on an effective multilateral system and the ICC contributes to the development of a stronger international society, well functioning international institutions and a rule-based international order, on the condition it is part of coherent and comprehensive approach. But in reality military means, security policy, internationational cooperation, multilateral traties, international and military tribunals, NATO relations, all are issues that are operating in isolation and have been separating the two sides of the Atlantic for some months now.
2. Global problems and initiatives to prevent and combat these problems.
The nineties witnessed the rise and fall of the sense of a shared global fate. Intractable problems, both economical and political, challenged the prostects of rapid successes in global governance. Member states failed to buttress the institutions intended to deal with global problems, with the competences and resources needed to attain the goals that they were expected to pursue.
Therefore, after having started in an atmosphere of euphoria and a strong belief in the feasability of the polity, the post-Cold War ended in its mirror image. We are now living in times of global tensions and divisions, where censenus and cooperation have become endangered species.
Bad governance is often at the heart of the problems. Corruption, abuse of power, weak institutions and lack of accountability corrode states from within and contribute to regional insecurity. A number of countries and regions risk becoming caught in a downward spiral fo conflict and insecurity.
The international community failed to put an early end to human suffering in Somalia, Yugoslavia, Ruanda, Congo and Sudan. Parts of the world, especially in Africa imploded, with the international community as a powerless bystander1. Then came September 11, Afghanistan and Iracq.
Illegal drugs and human traficking, organised crime, war crimes, genocide, terrorism, ecological dislocation, infectious diseases and financial turnoil showed how extend of borderless forces have exploded faster then our ability to cope with them.
These issues are like global warming: the consequences are diffuse and only perceptible on the long term. But at a certain point, the resulting strains will have become uncontrollable.
The links between terrorism, organised crime and guerilla activity have been examined, to conclude that there is a convergence between these phenomena in some cases2.
Different threats are becoming more and more emerging. Allthough these threats can not be seen in isolation a distinction can made as follows:
International war/genocide situations and crimes against humanity.
Many regions in the world are confronted with serious war situations, often at the origin of violations of international law3 in connection with war, genocide and crimes against humanity. These conflicts are often of ethnic origin. Warlords are not only involved in massive killings, but also part of organised crime and terrorism networks.
Only some of these crime situations are subject of prosecutions be it at national or at international level.
The International Tribunal of het former Yugoslavia and for Ruanda have since 1995 been investigating, prosecuting and bringing to justice some of these violations and crimes. The Rome Statute of the ICC of 17 July 1998 affirms that the most serious crimes of concern to the international community as a whole, in particular genocide, crimes against humanity and war crimes, must not go unpunished and that their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation. The Rome Statute recalls that it is the duty of every State to exercise its criminal jurisdiction over those responsible for such international crimes and emphasis that the ICC is to be complementary to national criminal jurisdictions. The succesfull outcome of effective investigation and prosecution of such crimes also requires close cooperation at transnational level between authorities of the States Parties to the Rome Statute at the one hand and the with the international tribunals at the other hand.
Terrorism
Religious zeal of political goals drive terrorists. Recent terrorist attacks are illustrating the privatisation of violence and globalisation of insecurity more then ever before. International terrorism is becoming more and more a strategic threat. The new terrorist movements seem willing to use unlimited violence and cause massive casualties. The tragic events on September 11 should not be considered anymore as “attacks”, but as “massacres”, in lay parlance, and as a crime against humanity in international law. The signal horror of what happened that morning results from the occurrence of the large-scale and premeditated random killing op people over a short period of time, in a context which is revolting for its massiveness and the innocent people killed in it, whatever motives the killers may have been prompted by to commit the massacres.
Terrorist organisations typically maintained a presence worldwide in order to raise and transfer funds, to create false identities for operatives, to procure weaponry and material, to set up operational sanctuaries, and to support infiltration across the borders and overseas.
The term “terrorism” was never defined by law in any consensual manner until the European Union, under the Treaty of Amsterdam has offered an ideal setting for international law enforcement cooperation , but this experience cannot be extrapolated to other regions of the world.
The first attempt ot reach an international agreement on terrorism was made in 1937 within the League of Nations. However its dissolution on the eve of WWII aborted this initiative. One of the measures considered by the League of Nations was the creation of an International Crimininal Court4, responsible for trying international terrorists and sea pirates. The United Nations has never achieved a comprehensive treaty on terrorism for several reasons: its membership includes nations who actively sponsor terrorits; the members could not reach an agreement on how to distinguish between terrorism and wars of national liberation. Especially the African and Asian members feared that such a treaty would endanger the right to self-determination of populations. The emphasized explicitly the legitimacy of violence in the struggle for national liberation, and the use of tactics such as hostage taking5. The third problem has been the inability of the United Nations to enforce a treaty, which makes it a futile exercise.
The Council of Europe issued the 1977 Strasbourg Convention on the suppression of terrorism. More recently, he G-7, as a periodical conference of the Heads of State and Government of the eight most industrialised countries in the world, has become more and more involved in anti-terrorism. The strength of their effort lies in the fact that they do not solely count on international treaties to resolve the problem, but pay attention to alternatives, such as the security standards set by the International Civil Aviation Organisation. The European Union has recently created a framework decision on preventing and combatting terrorism in 2004
The US has clearly expressed its wish to make the fight against terrorism the new priority, but most of the Europeans do not accept the idea of a “war on terrorism”. Behind these differences in opinion, there are divergent policies with regard to defence spending. 11 September not only led the US to declare itself at war, it also led to a sizeable increase in US military spending and brought about the biggest governmental reorganisation in fifty years by creating a new Department of Homeland Security. Planned increases of projection capability are only of slight benefit to civil defence and means are specifically earmarked to combat terrorism. Also a lot of progress has been made in the fields of police, justice and finance.
Decisions taken both in the US and Europe for protecting their societies from new attacks have been hotly debated on both sides of the Atlantic. One of main elements in the democracy/terrorism debate is military tribunals, such as those that have been put in place in the US. These appear reprehensible to Europeans for two reasons: they are a departure from the rules of democratic societies, and they prevent the cooperation that is essential for fighting terrorism. Exceptional jurisdictions are by definition a brake on international cooperation6.
Non-conventional attacks
Whereas it was a minor concern during the Cold War, the spread of nuclear, biological and chemical weapons, as well as the means of getting them to their targets, has now gradually become one of the main issues for security policies.
For about a decade, fears of NRBC terrorism have been in the minds of governements and experts, but have remained unknown to the wider public. The spread of these weapons, which are accurately described as weapons of mass destruction, including chemical, biological, radiological and nuclear weapons, to new states is officially held to be, since January 1992, one of the main threats to international security7.
The International Atomic Energy Agency has confirmed more then a dozen cases of smuggled nuclear-weapons-usable material, and hundreds more cases have been reported and investigated over the last decade. The potential demand is strong and growing. Constrainend supply and increasing demand causes prices to rise and create enormous incentives for illegal activities.
One of the more alarming aspects of international terrorism relate to the reported attempts by terrorist groups to deploy radiological, chemical of biological weapons of mass destruction. This threat environment (e.g. Al-Quada) is charaterised by elusive, widely-dispersed and lossely structured terroris networks, capable of deploying large number of trainen, committed operatives almost anywhere in the world. Several reports proved that numerous members of Al Quada are excellent chemists capable of developing deadly weapons out of products easily available8.
Fortunately there has never been an attack involving a nuclear device, but terrorists seem to have a preference for chemical and biological weapons. The IAEA is concerned, both with helping in international efforts to fight terrrorism and protecting the development of peaceful uses of atomic energy throughout the world.
The Organisation for the Prohibition of Chemical Weapons (OPCW) is an intergovernmental organisation with independent legal personality deriving its authority from the Chemical Weapons Convention (CWC). One of the important pillars of het CWC is non-proliferation of chemical weapons.
The use of biological weapons is outlawed by an international convention that dates back to 1925, and the production and storage of biological weapons were banned by the 1972 BTW convention. It is hardly surprising that bio-terrorism, against which there is currently little protection, has caught governments’ attention.
In 2001 heads of state and governments of the EU decided to establish a programme to fight bio-terrorism and at the Laeken European Council on 14/15 December 2001 it was decided to create a European Civil Protection Agency.
Organised crime.
In general the illegal trade in drugs, arms, intellectual property, people and money is booming. Drugs and arms often go together. According to the United Nations, only 18 million (or about 3%) of the 555 million small arms and light weapons in circulation today are used by governments, military or police forces. Small arms helped fuel 46 of the 49 largest conflicts of the last decade and in 2001 were estimated to be responsible for 1.000 deaths a day9. The illegal markets for muntitions, smuggling money, gold coints, diamants and other valuables is an ancient trade. Suitcases full of banknotes are still a key tool for money launderers, but computers, the Internet, and complex financial schemes that combine legal and illegal practices and insitutions are more common. Highly decentralised groups and individuals are bound by strong ties of loyalty and common purposes and organized around semiautonomous clusters or “nodes” capable of operating swiftly and flexibly. The promise of enormous financial gain motivates those who battle governments in these wars. Like the war on terrorism, the fight to control these illicit markets pits governments against agile, stateless, and resourceful networks empowered by globalization.
Never fettered by the niceties of sovereignity, the organised criminal networks are now increasingly free of geographic constraints. Moreover, globalisation has not only expanded illegal markets and boosted the size and the resource of criminal networks, is has also imposed more burdens on governments.
In many parts of the world bad governance, civil conflict, and the easy availability of small arms have led to a weakening of state and social structures. Somalia, Liberia and Afghanistan are the best known recent examples. The weakness of the state is often exploited (and sometimes caused) by criminal elements. Revenues from drugs have fuelled the weakening of state structures in several drug-producing countries; in Afghanistan, drug revenues kept the Taliban and several private armies in power. As states fail, organised crime takes over.
The problem of organised crime and terrorism were often considered separate phenomena prior to September 11. Security studies, the military and law enforcement increasingly view terrorism and transnational crime as strategic threats. These problems are no more seen as distinct10 and are seen as central threats to national and international security. Illustrations of links between organised crime and terrorism are the following:
- terrorists engage in organised crime activity to support themselves financially;
- organised crime groups and terrorists often operate in network structures and these structures sometimes intersect, terrorists can hide themselves amongst crimininal transnational organisations;
- both organized crime groups and terrorists operate in areas with little governmental controls, weak enforcement of laws and open borders, and conflict areas;
- both corrupt local officials to achieve their objectives;
- both often use similar means to communicate, exploiting modern technology;
- both launder money, often using the same methods and often the same operators to move their funds.
The newer criminal groups and leading terrorist organisations resemble modern legitimate business structures. The massive international illegitimate economy allows the illicit to operate with facility amongs the licit. The enormous discrepancies in regulation in a globalised world allows criminals and terrorists to exploit this lack of consistency to their advantage.
Moreover, many of the strategies presently being applied to combat terrorism, following of money trails, freezing of assets, and safeguarding borders are ones used to combat transnational organised crime.
Nationalism and ethnic conflict.
Nationalism can take different forms, form benign patriotism to malign chauvinism.
Ethnic conflicts remain the main root cause of crime situations against humanity
To establish the extent to which regional nationalism carries a real danger of ethnic conflict, two factors have to be taken into consideration.
First, the nationalism of ethnic minority groups, which form the majority in another country carries more severe risks then the nationalism of groups which cannot count on the effective support of nation represented by a state.
Second there is a significant difference between minorities dispersed over a large geographical area , mixed with other, in most cases majority groups, and minorities in separable entities in the vicinity of the mother nation.
The most frequently mentioned source for instability is the re-emerge of territorial claims. Much depend whether they consider the use of force to attain their objectives, of whether they rely exclusively on peaceful means.
The three basic state or war making instruments (monopolizing violence or the means thereto, accumulating wealth and offer protection) are also the distinctive features of an organised criminal organisation11. Faced with recent civil wars such as those in Bosnia-Herzegovina, Liberia or Ruanda, the traditional framework of for example the Cold War analytical model, has been reviewed and instead chaos theories have emerged, trying to explain the irrationality an brutality of these conflicts. The argument goes that long suppressed tribal, ethnic or national rivalries have been freed by the end of the Cold War. War is not simply a breakdown or a filure of a particular system, but also a way to create an altenative system of profit, power and protection12.
The thesis may not exhaustively explain the different aspects of the conflict, but it can also shed light on the behavior of its decision-making entities, be it political leaders or non-state parties such as warlords, militia leaders, rebels and criminal gangs.
An illustration: the so called Balkan highway to war and the gangster economies as a clear illustration.
As an example it interesting to state that simutaneously the war, the resulting blockade of the smuggling routes and the embargoes imposed on Yugoslavia, generated new criminal networks. Drug traficking became one of the means through which the conflicting parties tried to finance their war effort. According to the 1997 report of the Observatoire géopolitique des drogues in Paris, the bulk of Serbia’s activities in the drug trade are handled by three organsiations: the SID (foreign ministry information and documentation service), the SDB (the interior ministry, secret police) and the KOS (the counter-espionage department of the defence ministery)13. Despite the arms embargo, imposed on 25 September 1991, arms production and export did not come to a standstill. Most of the transactions ran through criminal networks of the Yugoslav secret service or through businesses, established in Western Europe or elswhere and controlled by Serbian businessmen or their strawmen. Some analysts believe the get-rich-quick pyramid schemes were used, by criminal cartels and international banks alike, as large money laundering machines. Politically unrecognized, surrounded by war, ridden by monetary chaos, hungry for foreign currency but isolated by international blockade, Yugoslavia was obviously a paradise for money launderers, but no proof was ever given for these allegations, mainly due to the fact that the ICTY was only interested in crimes falling strictly wihting its competences. Jane’s Intelligence Review described the Kosovo Liberation Army as a well structured organisation, steered probably by a coordinating body in the West, but with a military command in Kosovo or Albania14. Drug syndicates of Kosovo Albanians are today consedered the most powerful and certainly the most violent in Europe. The chaotic situation in early 1997 may have been a perfect disguise for an armed confrontation between the competing criminal networks responsible for human traficking with the help of Turkish suppliers.3. Global defence
During the Cold War, security was essentially defined in military terms, as the avoidance of direct military danger. The dissolution of the Soviet Bloc and of the Soviet Union itself meant the end of a direct an major military threat to security. The end of the Cold War also triggered a wave of inter and intra-state armed conflicts. In these conflicts the civilian population is targeted more then ever before. Civil wars also include a crime/conflict element.The collapse of some states into civil, and potentially regional war based on ethnic, religious, national and cultural divides is, often coupled with economic weakness, one of the central reasons for state failure. Groups fighting do mostly not enjoy any monopoly on the use of coercion. They will therefore have to come up with their own resources to protect and advance their aims. The link between crime, corruption and conflict is an issue which is both topical and problematic.
Not only terrorism, but also the proliferation of weapons of mass destruction and their delivery means, and even organised crime are closely intertwined with these developments. In such situations, getting ahold of weaponary and ammunition becomes particularly important. Having a wealhty dispora is handy. So too is access to arsenals of failed states.
The underlying causes of these problems have come much more to the fore: organised crime, corruption, illegal immigration, social and economic underdevelopment, lack of democratic institutons and respect of human rights, failed states, ineffective multilateral institutions, ecological problems, terrorism, etc. Conflict creates an environment where corruption and organised criminal activity can prosper to the extend that they become impediments to conflict resolution and post-conflict rehabilitation. Perpetrators are sometims parasites of conflict, in other case a symbiotic relationship develops between political and criminal elements. When it happens, crime, corruption, politcal aims, and ethnic extremism can become an explosive cocktail15.
It is not possible therefore to avoid the old-time problem of the war crimes, crimes against humanity, the terrorist and the freedom-fighter through the looking glass of history, or the question of “state terrorism”. On the one hand, it will be noted that in some cases conflicts that are labeled “inter-ethnic” have little to do with ethnic or national-cultural issues and more to do with defending narrow economic issues. Therefore the way to resolve them requires as much attention to underlying criminal activities as to so-called national agendae. The other key condiseration is the opposite extreme, namely the tendency to equate minorities with criminals and/or terrrorists and therefore use the excuse of cracking down on extremists to “deal with” minority issues. This can even deepen inter-ethnic instabiltity.
The concept of human security is usually thought to have originated in the 1994 Human development report16. Human security takes the individual and his community as a point of reference, rather then the State, by addressing both military and non-military threats to his security. The security of a state is not and end in itself, but a means of and necessary precondition for providing security for people. Territorial integrity, traditionally the cornerstone of security policy, is less important. Human security is geared to attaining justice, not just order and stability.
The issue of involving the army in domestic security situations is not an easy one. Warlaw argues that the answer to this question differs from country to country17. But generally speaking , in a democratic society, the police have the monopoly of violence on the domestic level. The armed forces, on the other hand, are designed to protect national territory from outside threats and agressions. This distinction seems clear, but does not take into account two specific contingencies. Firstly, there are situations in which the police is not capable to face the threat created by terrorists. This was for example the case in Northern Ireland, before the army moved in the Ulster counties in 1969. Secondly, the diffirentiation between the role of the police and army assumes that a state can easily make the difference between an “internal threat” and “external threat” and thus, war and peacetime. O’Brien argues: “The problem that emerge is in the interpretation of “peace-time” versus “war-time”; given the emergence of low-intensity conflict, in which a state is not in an overt state-of-war with an opponent but is confronted with a level of violence from that opponent that precludes peace “18. Sometimes conflicts are protracted because certain individuals or groups have a vested interest in perptuating instability.
A classical military response is politically not always feasible and not practical from a strict military point of view. One must also not forget that soldiers are trained in an entirely different perspective then police officers. Conflicts that relate to corruption or organised crime are not the type for which standard conflict prevention and crisis management techniques and tools have been developed.
In post-conflict situations, communities are often polarized, the rule of law is fragile, and relationships gorged in conflict may still be strong. It often happens that in a post-conflict situation (especially after a conflict with ethnic undertones) ethnic kin, war veterans, and profiteers rally around each other an develop a system of ethnic cronyism in which so-called “national interest” are equated with those of the power-seeking elite. Therefore more should be done to tackle criminality and corruption and their relationship to conflict.
Another element is the growing awareness of the importance of international relations, such as democracy and respect of human rights and an effective international legal order. The changing security environment is therefore moving and a number of international organisations have sought new ways to deal with security and justice.
Since then the international society and individual countries are focussing on four key threats:
- international terrorisme;
- proliferation of weapons of mass destruction;
- state failure, which undermines global governance;
- organized crime.
- international stability and security;
- an open economic world system;
- an international legal order;
- full respect of human rights;
- global welfare;
- a shared commitment to combat pockets of lawlesness and a shared commitment to settle regional conflicts.
Amongst the basic rules to be observed by all are:
- no state can decide under its own auspices to use military force in its relations to others, except for the provisions foreseen in the United Nations Charter;
- international terrorism is a global challenge that should be dealth with globally;
- the proliferation of weapons of mass destruction has to be contained;
- a joint commitment and ambition to put an end with all necessary means to gross and persistent human rights violations, war crimes and genocide;
- a joint effort to combat illegal drugs and human traficking an other transnational crimes so that these are not allowed to grow as a cancer threathening the very health of the international system. In theory three strategic objectives should be strived for:
- a particular contribution to stability and good governance;
- to build an international order, inlcuding a legal international order;
- to tackle the threats.
The OSCE considers the protection and promotion of human rights and fundamental freedoms, along with economic and environmental cooperation to be just as important for the meantenance and peace and stability as politico-military issues. Security is more and more seen as indivisable.
The perception of enhanced security in the Western states since the end of the Cold War has weakened their commitment to an integrated defence structure and re-nationalised their security policies, whereas other states have now become more enthusiastic advocates of collective defence. NATO’s traditional framework has been subjected to pressures from different political and geographical directions, including pressure from Central Europe for a NATO defence commitment. In the face of this pressure, the West has pulled back from mutlilateralism, and shown itself unwilling to use NATO or the WEU to engage in a decisive way in the task fo management of the post-Cold War international sysemt beyond the established perimeter of the Western security-community.
So individual countries and international bodies and organisations are involved in many initiatives, often illustrating their inability to pay to their strenghts when trying to make more of their human intelligence capabilities and coordination of information, their knowledge of terrorist and criminal networks, their special forces, their peacekeeping forces, their broad conception of security issues and their ability to enforce international laws, be it at national or at international level. The risk of proliferation grows over time; left alone, terrorist networks will become even more dangerous. State failure and organised crime spread if they are neglected, as we can see in West Africa
The United Nations Security Council has the historic responsibility to function as the primary venue to watch after the stability of the international system.
The open-ended and over-inclusive use of military force in connection to terrorist attacks for example has already brought the planet on the brink of nuclear war by unduly stretching the justified response to a crime against humanity , thus giving the way to knee-jerk reactions in complex conflicts which have been plagued with violence for decades. This is most apparent in the century-long crises between India and Pakistan over Kashmir, and between Arabs and Israelis over Palestine21.
The perpatrators, facilitators, and abettors of crimes against humanity must be sought under international law across the planet, and it is the duty of all countries and governments, and competent international organisations to help actively in their arrest, trial an punishment after due process is served. Justice means due process, far more dedication to its projection internationally, and the identification of neutral judges and tribunals to supervise any use of violence. It should not be a license to wage war whenever an act of terror or serious violations of international humanitarian law, as these crimes are described in the Rome Convention on the ICC, are committed somewhere. While measured use of force should not be precluded against the rulers of a country who refuse to respond and cooperate with international justice requesting the surrender of mass-scale political assasins hidden or protected on their territory, an open-ended war on terrorism is ill-conceived, unjust, and interminable22. A different approach is needed, where legal categories recognisable under international law (jus cogens) determine any use of violence, preferably in the shape of independent and effective national or international tribunals that use of force would strenghten rather then undermine. International criminal tribunals looking at situations in Yougouslavia and Ruanda offer a prime example, as do national tribunals by so-called universal jurisdiction and the long-arm reach of justice for especially heinous crimes recognised as such by international law.
4. Global security and justice : the possible role of and impact on the International Criminal Court (ICC)
Security is “the condition of being protected from or not exposed to danger, a feeling of safety or freedom from or absence of danger23. Security is seen as indivisible and is described as a comprehensive approach underlying the concept of security and cooperative mechanisms. In a Common concept, the WEU24 described the security environment, highlighting inter alia the importance of the maintenance of international peace and order and the widest possible observance of generally recognized norms of conduct between states and of democratic institutions, respect for human rights and fundamental freedoms and the rule of law.
Canada defines human security as “freedom from pervasive threats or people’s rights, safety or lives, i.e. freedom from fear as opposed to freedom from want, which corresponds to well-being rather then security25. Canada has identified five policy priorities: protection of civilians, peace support operations, conflict prevention, governance and accountability and public safety. Like comprehensive security, human security highlights the interconnections between different dimensions of security and puts into evidence the global nature of security challenges.
Security gets a different interpretation on different continents. For some countries insecurity is seen as terrorism and weapons of mass destruction. For other countries insecurity is assimilated with civil wars. In other parts of the world it is seen as poverty and organised crime group activities. The global dimension of war situations and terrorism demonstrated by Al Queda called of a substantional cooperation and coordination. The very existence of an international society is, just as is the case with a nation state, dependent upon the existence of shared norms and laws. It obliges international fora and States, inter alia, to:
- ciminilaze the provision or collection of funds destinated to support the phenomena, prohibit persons from doing so and bring any perpatrator to justice, be it at national or at international level;
- freeze funds and other financial assests or economic resources of criminals or of the persons that attempt, participate or facilitate illegal acts, including funds generated from property owned or controlled by them;
- refrain from supporting these criminals in any way (e.g. recruitment, safe haven, use of territory, permitting them to cross borders, forge documents, etc.);
- prevent the commission of illegal acts;
- cooperate in criminal investigations and proceedings.
The blurring of the border line between global an domestic has already had its impact. It is now widely recognised that when states, instead of being protectors of individuals, become tormentors, the international community has the right and even the duty to take over in order to protect the invidividual man, woman and child from violence, abuse and injustice.
On July 1998, a United Nations Conference adopted the Rome Statute of the ICC. The Rome Statute identifies for the purposes of exercising jurisdiction the most serious violations of international human rights and humanitarian law. These violations are grouped within the categories of genocide26, crimes against humanity27, war crimes28
and the crime of agression29.
The Rome statute contains no requirement that the assistance be either direct or substantial. Furthermore, incitement is limited to the crime of genocide (art. 25, 3, e). According to art. 25, ordering, soliciting or inducing any crime within the statute, which occurs or is attempted, gives rise to responsibility. The Statute defines the boundaries of complicity in a wide way, situating the net well beyond the principal perpetrators. The objective element requires little more then assistance, while the subjective element requires a purpose to faciliate the crime as well as the knowledge that the assistance will assist in the offence.
The aim of ICC investigations is to identify the precise nature of the alleged criminal activity, to identify alleged suspects and potential witnesses including victims, and to investigate both incriminating and exonerating circumstances.
It is clear that many groups responsible for crimes falling within the mandate of the ICC, are involved in other forms of crime such as terrorist acts, illegal immigration, social and economic underdevelopment and organised crime, as the end of the cold war produced a drastic change in security environments. In the absence of a major military threat, other factors can and will constitute the underlying causes of terrorism or of armed conflict between or within countries. These can intrinsically affect the values and interest of the ICC as it is not difficult to prospect further and more intense targeting of the civilian population. Most interesting for the ICC are the financial support from illicit activity, organised crime groups operating as supporting networks, common base of operations (functioning where the central state controls are least, where there are porous borders and week law enforcement), corruption of officials, the use and exploitation of information technology to maximise the effectiveness of their operations, the employement of specialists and experts, money laundering (especially via underground banking mechanisms) and (weapons, false pasports, etc.) activities.
It is not difficult to prospect further and more intense targeting of the civilian population via a more and more intense interaction between criminal, terrorist, and anti- humanitarian activities.
Nevertheless it would be completely unjustified to criminalize all war lords and rebels as an ethnic group, nor to consider them all as terrorists or key figures in international organised crime. But it is clear that many of them are heavely involved in criminal networks and activities, falling only partly within the strict mandate of the ICC.
It is becoming more and more clear that situations falling within the mandate of the ICC can not be seen in isolation and the ICC should not work in isolation and therefore it is interesting to explore the capabilities of the ICC when tacking criminal situations on an ad hoc basis. Coalition building between national and international law enforcement agencies could become a better guarantee for more focussed investigations and the promotion of better coordinated investigation efforts, making full use of the available intelligence and evidence. There are also other concerns with the capacities of federal or inernational courts. First is the protecting intelligence information – especially in the middle of an ongoing conflict. Also the capabilities to arrest and convict people in the middle of a conflict poses serious problems.
Another problem is the tightly woven exclusion of probative evidence in traditional federal and international trials, limiting what can be placed before a court or a jury for evalutation.
The ambiguities as what conduct is criminal in regard to ICC should be further explored, especially when trying to acknowledge the seriousness of the disintegrating processses and the threat they poses to the social, economical and political future of the regions, subject of any ICC involvement. Ultimately, the direct threats pose the biggest frustrations. International criminal law was seen to be more effective in addressing the relatively minor threats of local or regional group criminality or, at the opposite extreme, providing a capability for international criminal law offers limited capacity to diminish the threat of Osam bin Laden for example. But in the aftermath of the recent attacks it has become clear that the existing legal framework for bringing the attackers to justice is inadaquate. No less serious is the law’s difficulty in reaching States who refuses to join multilateral agreements, precisely because they want ot engage in the activities that the agreement prohibits. Some countries have placed themselves outside the bounds of international new developments. On May 2002, the US administration took the unprecedent step of withdrawing the signature. The US then embarked upon a literal crusade against the ICC. Unsigning af this treaty would be a move that is unprecedented in international law and, in effect would signal the intention to go to war with the Court.
Al these problems can not be considered anymore as separate phenomena and there is a need to better understand the links between these phenomena. Therefore more interest should go in a more comprehensive approach and in further developing existing institutions and in supporting and clarifying the role of new ones such as the International Criminal Court as it is submitted that the role of international organisations could be divided into a normative role, an operational role and a key element in the upgrowth of transnational epistemic communities.
A central question is which crime situations should fall within the sphere of interest of the ICC in order to better evaluate the situations (potentially) under investigation. Not only the definition of related crimes is extremely important, but also the criteria based on which the selection of cases to be prosecuted earns particular attention. Formal criteria include today: the person to be targeted for prosecution, the serious nature of the crime, policy considerations, practical and other relevant considerations. Also informal criteria such as showing that the tribunal is capable bringing the persons before the court merit particular attention.
When exploring possibilities to investigate arms traficking, illegal financial transactions and money trails, other related forms of organised crime, and especially terrorist activities, the question who is jurisdictionally responsible takes on additional significance.
But international criminal law enforcement has not advanced so far that the various ad hoc tribunals and the ICC, will be adapted to prosecute support and related criminal activities, because procedural difficulties have been and continue to be surmounted sucessfully.
The question also arises what to do with information collected by the ICC and not of direct interest when prosecuting a case before the Court and whether and how this information can be used to facilitate prosecution of international criminals before other national or international tribunals.
There is also the problem of sharing information among States, as well as in coordination with international institutions, including Interpol, the United Nations Centre for International crime protection, the ICRC, the Council of Europe and other regional organisations (e.g. Europol), and international tribunals such as the ICTY and the ICTR.
Unfortunately, most States lack effective legislation in order to share information with the ICC, when being not directly involved into ICC investigations and cases.
Use of information for treaty compliance and law enforcement poses a serious problem of how to maintain the confidentiality of that information. To succesfully assimilate accurate information requires that reporting parties, public and private, willingly divulge sensitive and valuable secrets; resistance will mount if there are unanswered suspicionss that the information is mishandled or released. The practice in the ICTY and the practice of the ICC.
5. Conclusions
In the contemporary world, violent conflict is one of the biggest threats to security. In this world of growing global threats , global markets and global media, our security and properity depend on an effective mulateral approach.
While measured use of force should not be precluded against the rulers of a country who refuse to respond and cooperate with international justice , an open-ended war is ill-conceived, unjust and interminable. A different approach is needed, where legal categories recognisable under international law determine any use of violence in justified conditions.
But just like in a national society, an international legal order is needed to ensure the legal equality of us all, just like a Constitution does in a national state. With respect to criminal sanctions, the universality principle provides for jurisdiction both to prescribe domestic laws and to enforce sanctions against crimes or violations that have an independent basis on international law.
International justice has been elevated to the next level by the establishment of the International Criminal Court. But global defence and global justice should be more subject of an integrated approach, making possible a more and better balanced interactivity between national and international fora, making sure that serious violations of crimes against humanity and other serious forms of organised crime and terrorism, become subject of a structural and integrated preventive and repressive approach.
Unfortunately international law enforcement has not advanced so far that the various ad hoc tribunals and the ICC, will be adapted to prosecute support and related crimes more effectively, because of procedural difficulties have been and continue to be surmounted succesfully. In addition , international law may be under threat, but it is not at all certain that its role will be significantly diminished.
In the meantime the ICC has to continue to promote such an open and cooperative attitude on a pragmatic basis. International lawyers, foreign experts, and criminologists will increasingly have to become multi diciplinary in their vision and strategic planning, flexible in their ability to form alliances and construct methods to interact with each other and develop their own networks, while deflating those of criminal groups.
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