‘Constitutional impact’

AV Dicey provided a classical definition of the function of constitutional law as comprising, ‘all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state’.^{Footnote 13} A common characteristic of states that are subject to constitutional governance is that their officials are constrained from acting against certain fundamental interests of citizens; their constituting rules therefore typically include rights conferred upon individuals against government action.^{Footnote 14}

While many states have codified these constitutional rules in a document identified as ‘the Constitution’, others rely instead on a wider range of legal sources to establish how power is distributed and how it may be used – the United Kingdom being perhaps the best-known example. Because the UK lacks a single constitutional document establishing the rules and boundaries of the exercise of power, British constitutional law always has been identifiable by its function rather than its appellation. Thus, ‘[i]t is possible to identify, in the abstract, certain functions that constitutions perform. In England, whatever laws actually perform those functions are considered part of “the constitution”.’^{Footnote 15}

Such a functionalist approach can be followed in any constitutional inquiry, not only in relation to Britain. In the American context, Fallon states that, ‘insofar as the Constitution gives rise to expectations about how officials can acceptably behave, and insofar as it creates or supports institutions capable of visiting adverse consequences on officials who do not comply with their perceived duties or otherwise depart from accepted patterns of behavior, the resulting constraints on official action ought to count as “constitutional constraints”’.^{Footnote 16} This logic, while derived from a review of domestic constitutional constraints, applies equally to international-level constraints that similarly are external to national constitutional law.

Accordingly, the term ‘constitutional impact’ as used in this article should be understood functionally, as shorthand to capture how external constraints – in this case, the rules and applied practice of ICL – can both pierce the cloak of state sovereignty and perform specific functions normally attributable to constitutional laws. For the purposes of my argument, the relevant constitutional functions are protecting fundamental human rights; constraining officials from certain abuses of their constitutional powers; and offering a means for officials to be removed from office where they have committed such abuses. The performance of these functions may be indirect (e.g., rights protected indirectly via the prosecution of officials who are charged with crimes whose commission involves rights-infringing activity). Furthermore, the functional consequences of ICL enforcement may be more important than the formally intended consequences (e.g., if, as a result of ICL prosecution, a country’s president or other senior official were practically impeded from continued public activity, this would be demonstrative of ICL having constitutional impact).

International criminal law – overview of relevant characteristics

‘International criminal law is a body of international rules designed both to proscribe international crimes and to impose upon states the obligation to prosecute and punish at least some of those crimes.’^{Footnote 17} Notably, international crimes include genocide, crimes against humanity and war crimes. The present-day ICL regime developed in response to the worst excesses of violence such as were witnessed during the latter part of the nineteenth century and throughout the twentieth century,^{Footnote 18} though its roots can be traced back much further.^{Footnote 19} The original response to such violence and accompanying suffering was for states to enter into treaties that established rules of humanitarian conduct intended to lessen the suffering caused by armed conflict. These treaties are the basis of what is now called international humanitarian law (IHL). Most prominent are the provisions contained in the Hague Conventions, the Geneva Conventions and Additional Protocols, which restrict the methods that can be used in conflict and require certain standards of protection to be afforded both to military personnel and civilians. Present-day ICL is derived from IHL both by direct incorporation of the earlier treaty provisions into later treaties such as the Rome Statute^{Footnote 20} and by finding that formerly treaty-based prohibitions (such as the so-called ‘grave breaches’ that are contained in the Geneva Conventions) have become part of customary international law.^{Footnote 21} In addition to its incorporation of IHL treaty prohibitions and customary laws, ICL encompasses other crimes – notably including crimes against humanity and genocide – that are not considered part of IHL.^{Footnote 22}

ICL may be applied by domestic criminal courts within the scope of their ordinary jurisdiction (i.e., crimes committed on the state’s territory or by its citizens), subject to the national rules governing the application of public international law. It may also be applied by domestic criminal courts in respect of ICL crimes committed anywhere, by anyone, in accordance with the principle of universal jurisdiction. Finally, the present-day ICL regime includes the possibility for the ICC to assert jurisdiction in certain circumstances. Each of these possibilities, together with their implications for national constitutional arrangements, is discussed below.

ICL as public international law. Ignoring, for a moment, the novel aspects of the ICL enforcement regime (specifically, the ICC and the principle of universal jurisdiction, to be discussed below), our starting point in assessing ICL’s capacity to have constitutional impact must be to consider it formally and simply as part of the greater corpus of public international law. As such, it has to be reconciled with national conceptions of sovereignty and constitutionally determined national legal orders just like every other kind of public international law – whether, e.g., the Law of the Sea, International Human Rights Law or International Environmental Law. Depending on whether a particular state is monist^{Footnote 23} or dualist^{Footnote 24} in its conception of international law, we can say that ICL may apply directly within the domestic legal system (monism),^{Footnote 25} otherwise national implementing legislation may be required in order for it to be effective (dualism).^{Footnote 26} In addition, national constitutional provisions will determine ICL’s position in a nation’s hierarchy of laws.

For a monist state to prosecute ICL crimes in its domestic criminal courts, it should be necessary simply to refer to the relevant international treaty provisions and apply them in the domestic court – indeed, military courts in the Democratic Republic of the Congo regularly apply the substantive articles of the Rome Statute in war crimes and crimes against humanity cases.^{Footnote 27} By contrast, a dualist state either would have to enact domestic implementing legislation to reflect the content of the particular Rome Statute provision to be applied or otherwise, its courts would have to find that the provision reflected a principle of customary international law such that it could be applied as part of domestic law.^{Footnote 28}

It appears that if ICL is viewed simply as public international law, with its attendant potential to be implemented by domestic courts as described above, there is little scope for it to have constitutional impact. We can reach some relatively banal conclusions, such as that ICL is not designed to play a special constitutional role, in contrast to IHRL.^{Footnote 29} Otherwise, ICL resembles public international law of the most ordinary kind. Furthermore, we may presume that in most countries it will be applied only very rarely, if at all. For example, in a stable European democracy,^{Footnote 30} the only ICL prosecutions that we might expect to observe most likely would be of (1) foreign citizens who have come as refugees to Europe after having committed crimes in their home country, or (2) (a topical example) citizens who have travelled abroad to fight for non-state armed groups.

Obviously, this is not the end of the inquiry because – unlike other bodies of public international law – ICL can be applied in novel ways that have the potential to intrude upon national constitutional arrangements. Thus, with respect to ICL crimes committed on the territory of one state, the crimes can be prosecuted either in another state in accordance with the principle of ‘universal jurisdiction’ (whereby any state may use its own domestic legal system to prosecute core ICL crimes committed anywhere in the world) or – subject to the principle of ‘complementarity’ – at the international level by the ICC. In addition, ICL inherently is different from other kinds of public international law, as well as from domestic criminal law, because it is used above all to prosecute political and military leaders^{Footnote 31} accused of having committed the most serious atrocities. Thus, whereas constitutional law and IHRL exhibit a degree of subject matter overlap insofar as they both concern rights provisions, constitutional law and ICL exhibit a kind of jurisdictional overlap in the sense that they both apply limits to individuals in positions of power who have the capacity to cause massive harm if they should abuse the trust and authority vested in them.^{Footnote 32} In circumstances such as civil war or the emergence of despotic rule where other mechanisms (e.g., national constitutional checks and balances, or international human rights obligations) are ineffective in constraining abuses of power, ICL uniquely should have the potential to shape national political landscapes albeit that such effects may be extremely difficult to tease out from the inevitably complex web of other causal factors.

ICL and universal jurisdiction. Universal jurisdiction is the principle that any state may prosecute certain international crimes, even absent any nexus between the prosecuting state and the circumstances of the crimes (i.e., their location or the nationality of the perpetrator(s) or victim(s)). While the range of crimes subject to universal jurisdiction has never been precisely defined, historically it has covered piracy and more recently, core ICL crimes.^{Footnote 33} There is no commonly agreed statement of the concept in international law, although the ‘Princeton Principles on Universal Jurisdiction’ represent the efforts of a group of scholars to develop such an agreed position.^{Footnote 34}

According to this principle, a Spanish prosecutor could, for example, bring charges for the ICL crime of persecution committed in Syria by government forces against Syrian civilians without any need to show a connection with Spain.^{Footnote 35} In certain limited circumstances, states thus are endowed with the theoretical power to encroach upon each other’s sovereignty. As Macedo puts it, ‘[u]niversal jurisdiction appears as a potent weapon: it would cast all the world’s courts as a net to catch alleged perpetrators of serious crimes under international law. It holds the promise of a system of global accountability – justice without borders – administered by the competent courts of all nations on behalf of humankind.’^{Footnote 36}

However, if universal jurisdiction offers a route to justice in particular where domestic judicial institutions cannot function or where the ICC is unable to act,^{Footnote 37} it also empowers third states to act where to do so may not be in the best interests of the country of the crimes.^{Footnote 38} To give an example, let us imagine that there was a bloody civil war in state X, now ended. State X might undertake, as part of its peace-building efforts, to include a general amnesty provision in its new constitution. Regardless of whether state X had ever ratified the Hague Conventions or the Geneva Conventions, let alone the Rome Statute, any other state choosing to assert universal jurisdiction could bring criminal proceedings in relation to ICL crimes committed during the civil war. State X’s power to determine how to rebuild its society is not simply out of its hands – it is at the mercy of all and any other states that might choose to act. In reality, the prospects for such third country interference in the face of a well-intentioned national amnesty are remote. However, universal jurisdiction – at least in theory^{Footnote 39} – has the potential for constitutional impact in countries where ICL crimes are committed, with the nature of their constitutional arrangements and their choice concerning whether or not to become a state Party to the Rome Statute having no bearing upon the possibility for the judicial authorities in a third state to prosecute the crimes committed there.

ICL, the ICC and complementarity. Upon entry into force of the Rome Statute in 2002, the ICC came into being as the first permanent, independent, international court with jurisdiction to hold accountable individuals who commit ICL crimes. The Statute is in fact a treaty, agreed upon by the participants at the 1998 United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) and subsequently ratified by 123 (and counting) states Parties. It incorporates mechanisms to establish the ICC and details the substantive criminal prohibitions that are subject to the court’s jurisdiction. The sources of the substantive prohibitions are as mentioned above – previous treaty obligations under IHL, along with other sources including, most notably, customary international law.^{Footnote 40}

As regards constitutional law, questions of sovereignty as well as of constitutional compatibility were thoroughly discussed and by and large were resolved at the Rome Conference. It was understood that the ICC in general would respect state sovereignty because it would have jurisdiction to investigate and prosecute ICL cases only where national courts were unwilling or unable to proceed. This ‘complementarity’ principle provides the main safeguard for states reluctant to cede jurisdiction to the ICC based on fears of a loss of sovereignty to a supra-constitutional institution.^{Footnote 41} The first ICC Prosecutor described complementarity as a ‘positive’ concept, such that, ‘[t]he effectiveness of the International Criminal Court should not be measured only by the number of cases that reach the Court. On the contrary, the absence of trials by the ICC, as a consequence of the effective functioning of national systems, would be a major success.’^{Footnote 42}

Complementarity marks a fundamental difference between the ICC and the ad hoc tribunals (ICTY, ICTR), which as UN Security Council (UNSC) creations were endowed with primary jurisdiction over the crimes committed during the 1990s Yugoslav wars and the 1994 Rwandan genocide, respectively. By contrast, the ICC is the product of a multilateral treaty. In order to gain acceptance amongst a large group of states, the treaty had to address national concerns in a way that the ‘imposed from above’ ad hoc tribunals did not. Accordingly, the Official Records of the Rome Conference are replete with discussion about sovereignty as a concern and complementarity as the solution.^{Footnote 43}

As regards national constitutional arrangements, the complementarity principle means that there is a presumption in favour of domestic investigations and prosecutions. However, should those efforts not be genuine (or should the state in question simply lack the capacity to conduct meaningful investigations or prosecutions), the ICC can assert jurisdiction and can continue with proceedings at the international level. This means that there is always the potential for the ICC to intercede in circumstances in which national arrangements are found wanting.^{Footnote 44} In structural terms, we may say that complementarity preserves national constitutional independence and sovereignty to the greatest degree possible, while maintaining the ICC as ultimate guarantor of international standards of justice and maintaining the possibility for the ICC’s intervention to have constitutional impact depending on the circumstances of a given case.

First example (pre-ICC): Comparing the constitutional impact of IHRL v ICL in Bosnia

The 1992–95 Bosnian war saw many thousands of civilians killed, forced from their homes or otherwise persecuted based on their ethno-religious identity. The United Nations was sensitive to these abuses of fundamental international rights^{Footnote 49} and appointed a Special Rapporteur of the Commission on Human Rights to monitor the situation throughout the former Yugoslavia, including in Bosnia. When over 7,000 Bosniak^{Footnote 50} males disappeared following the armed takeover of the enclave of Srebrenica by Bosnian Serb forces in July 1995, the Special Rapporteur investigated and duly submitted a report to the UN Commission on Human Rights, detailing what information he had about the fate of the disappeared but also giving notice of his resignation based on his frustration with the UN’s impotence in the face of such massive human rights violations. He wrote: ‘[I] … cannot continue to participate in the pretence of the protection of human rights.’^{Footnote 51} As he recognized with regret, a mandate to monitor IHRL violations in a conflict situation where the rule of law did not apply provided no inherent means to protect individuals whose rights were being abused or were likely to be abused.

Concurrently, the ICTY Office of the Prosecutor began to investigate the same events. It would be fanciful to suggest that the ICTY’s efforts had any visible impact on the enforcement of the rights of Bosnian citizens during the remainder of the conflict. However, an indictment charging Bosnian Serb president Radovan Karadžić and his army commander, General Ratko Mladić, for the crimes committed following the fall of Srebrenica was issued on 14 November 1995,^{Footnote 52} a week before the signature of the Dayton Peace Accords signalled the end of the war. Interestingly, the peace accords incorporated a new constitution for the country, pursuant to which any persons who had been indicted by the ICTY but who had not surrendered to that tribunal were barred from holding office.^{Footnote 53} The provisions of this new constitution were to be backed up not only by Bosnia’s severely weakened rule of law institutions, but also by an international High Representative and a large international military contingent. What can we conclude as regards the relative impact of IHRL and ICL on Bosnian constitutional affairs? Arguably, the Special Rapporteur’s experience typifies the practical limitations of IHRL in circumstances in which there is a rule of law vacuum. By contrast, ICL did have an impact on post-war constitutional arrangements, notably by precluding those implicated in the commission of mass atrocities from participating in political life – not only by dint of the new constitution’s prohibition and attendant international supervision, but also because ICTY indictees – seeking to avoid trial in The Hague – were compelled to withdraw from public life and go into hiding.^{Footnote 54}

Second example (ICC, non-state Party): ICC’s response to post-election violence in Côte D’Ivoire

Côte d’Ivoire exhibited significant political tensions following a brief civil war in 2002 that left the country divided between government-controlled and rebel-controlled areas. In 2010, president Laurent Gbagbo, having overstayed his constitutionally mandated term of office by five years, finally called elections and was defeated. Gbagbo challenged the result by means of an appeal to the Ivorian Constitutional Council, which was empowered pursuant to Article 94 of the constitution to make final rulings on the outcome of such elections.^{Footnote 55} The council, in a decision that was ‘widely viewed internationally and by the Ivorian opposition as having been motivated by partisan bias’,^{Footnote 56} annulled a large portion of the election results (for regions in which the opposition had overwhelming support) and declared Gbagbo the winner.

The country descended into violence until Gbagbo finally was ousted in April 2011, following intervention by French and UN troops. Although Côte d’Ivoire was not a state Party to the Rome Statute,^{Footnote 57} the new Ivorian administration requested the ICC to investigate the post-election violence.^{Footnote 58} The ICC opened an investigation and issued an arrest warrant for Gbagbo, pursuant to which the ex-president was transferred to The Hague in November 2011.^{Footnote 59} The ICC was able to exercise jurisdiction on the basis that Gbagbo’s government had previously accepted the court’s jurisdiction in 2003 (in relation to the violence that had occurred in 2002),^{Footnote 60} which the ICC Prosecutor considered a sufficient mandate for its investigation some eight years later.

The ICC’s involvement in Côte d’Ivoire came at a stage when the election crisis had been resolved by means of international military intervention. It would therefore be an overstatement to say that it was the decisive factor in preventing the country from descending further into violence. However, the process of re-establishing accountable democratic government following the post-election violence arguably was significantly aided by the fact that Gbagbo was no longer subverting constitutionality and the rule of law in pursuit his own ambitions.^{Footnote 61} (We may imagine that the application of IHRL might also have been appropriate in the Ivorian situation. However, it could not have achieved the direct result of removing the former president – who manifested a key barrier to peace and stability in the country – given the lack of any international human rights court with jurisdiction to pursue individuals accused of rights abuses.)

Third example (ICC, state Party): ICC’s response to post-election violence in Kenya

National political candidates Uhuru Kenyatta and William Ruto allegedly were among those responsible for crimes committed during post-election ethnic violence in Kenya in 2007–08, when thousands were killed, injured, or forced to flee their homes. Neither Kenyatta nor Ruto held government office at the time the crimes were committed. Allegedly, however, they had influence or control via political and tribal structures over the mobs and criminal gangs that perpetrated many of the attacks. Peace was re-established in the country only after several months of violence. Following African Union-mediated negotiations, a national unity coalition was formed to serve as an interim government. In 2010, a new Kenyan constitution was introduced after having been approved in a referendum^{Footnote 62} and in 2013, general elections were held in which Kenyatta and Ruto were elected as President and Vice-President, respectively.

Initially, it appeared that the 2008 unity government was committed to bringing the perpetrators of the violence to justice. A Commission of Inquiry was set up, which recommended the establishment of a special tribunal in Kenya with ‘the mandate to prosecute crimes committed’.^{Footnote 63} However, the political will to create such a tribunal was lacking and instead, the names of those believed to bear the greatest responsibility for the violence were passed to the ICC Prosecutor in July 2009.^{Footnote 64} The Prosecutor, who had been monitoring the Kenyan situation, formally opened an investigation proprio motu (i.e., on his own initiative, rather than at the request of the Kenyan authorities).^{Footnote 65} In 2011, charges were confirmed inter alia against Kenyatta and Ruto. Since then, the ICC’s Office of the Prosecutor has endeavoured to bring the cases to trial, however the Kenyan authorities and allies of the accused individuals are blamed for frustrating these efforts.^{Footnote 66} As a consequence, the Prosecution withdrew the charges against Kenyatta on 5 December 2014^{Footnote 67} and, while the trial against Ruto is ongoing, the Prosecution’s position in that case also appears to have been weakened. In parallel to these stalled proceedings in The Hague, domestic prosecutions that were contemplated against lower-level accused also have stalled. According to Kenya’s Director of Public Prosecutions, none of the 4,576 cases opened in the aftermath of the post-election violence were deemed ‘prosecutable’ due to lack of evidence.^{Footnote 68}

In terms of the constitutional impact of ICL, it is hard to see Kenya as a positive example. Rather than the ICC standing up against abuses of constitutional powers, arguably the Kenyan government under Kenyatta’s and Ruto’s leadership has in fact outmanoeuvred the court.^{Footnote 69} Nonetheless, the ICC’s involvement in Kenya seems to have precipitated some change. For one thing, the adoption of a new constitution in 2010 appears to have been motivated in no small measure by the unity government’s desire to establish a credible domestic system capable of protecting rights and prosecuting the post-election violence in order to persuade the ICC to transfer its investigations back from The Hague to Nairobi. This is not simply conjecture – the Kenyan government presented exactly these arguments in submissions to the ICC in March 2011.^{Footnote 70} For another, the facts that the 2013 elections were dominated by the ‘ICC question’ and that former political opponents Kenyatta and Ruto ran together on a joint platform demonstrates the impact that the ICC’s investigations were having at the highest levels of Kenyan politics; the ICC proceedings presented at that time a credible risk to Kenyatta and Ruto that they would be transferred to The Hague for trial and as a practical if not legal consequence, removed from national political life.

Fourth example (ICC, non-state Party): ICC’s response to atrocities in Sudan

Upon referral by the UN Security Council, in 2005 the ICC opened an investigation into atrocities including the allegation that genocide was being committed in Darfur, Sudan, by the Sudanese military and by proxy forces including Janjaweed militias.^{Footnote 71} In relation to this violence, the Court has issued warrants for the arrest of six individuals, four of whom were members of or aligned with the Sudanese government including most notably, president Omar al-Bashir. The lack of progress in the ICC’s prosecution of these men has been a source of much comment and criticism and the Darfur situation tragically highlights – to an even greater degree than the travails of the Kenyatta case – the limits of the reach and power of the ICC Prosecutor. Indeed, in her December 2014 address to the UN Security Council, the Prosecutor – after detailing the current state of the Darfur investigation and of procedural work being done at the court – told the Security Council that it was the body that had the power to act against Sudan’s leadership, if it chose to do so. Her report concluded with the following stark statement: ‘Without stronger action by the Security Council and State Parties, the situation in Sudan is unlikely to improve and the alleged perpetrators of serious crimes against the civilian population will not be brought to justice.’^{Footnote 72}

The clearest demonstration of the ICC’s impotence in the al-Bashir case has been provided by the court’s inability to secure the president’s arrest even during his travels outside Sudan (a non-ICC state Party) to the territories of ICC states Parties. Pursuant to the Rome Statute, their authorities are obliged to enforce the ICC’s arrest warrant but so far, none of the states Parties visited by al-Bashir have complied with this obligation.^{Footnote 73} The only recourse the ICC has in the face of such non-cooperation by its states Parties^{Footnote 74} is to refer the matter to the ICC Assembly of states Parties or to the UNSC.^{Footnote 75} The ICC has indeed followed this procedure and made referrals to the UNSC, however – as noted by the Prosecutor in her address quoted above – no sufficient action has been taken as a result.^{Footnote 76}

What is the implication of these clear limitations on the ICC’s reach for the argument sketched in this article regarding the potential for ICL to have constitutional impact? Most simply, that the application of ICL is not immune from the tides of realpolitik. In the case of Darfur, the lack of will from the international community, whether at the level of the African Union or within the Security Council, is a definite obstacle to the arrest and prosecution (and attendant removal from political life) of president al-Bashir and his allies. Similarly, the ability of the Kenyan authorities to impede the ICC’s pursuit of the sitting president and vice-president reflects the limits of international concern with those legal proceedings. This is likely, at least in part, to be a consequence of the renewed strategic importance of Kenya following increased Islamist terrorist activity in east Africa and particularly, the Nairobi shopping mall attack in September 2013. While these realities need not be fatal to my argument, they do highlight that ICL’s constitutional impact may often be overwhelmed by more powerful forces and the argument, for the moment anyway, is still quite fragile when tested against real-world conditions rather than in a hypothetical world where the ICL regime functions in accordance with the highest aspirations of international justice.