JURIST Guest Columnist Eric Leonard, the Henkel Family Chair in International Affairs at Shenandoah University, says the ICC should constantly adhere to a policy of prudent advocacy, since interfering in "low-level" situations would cause a multitude of legal, political and financial problems...
Recently a group of Maldives lawyers submitted a case to the International Criminal Court (ICC). The case involved the detention of a Maldives judge accused of corruption and political bias in his professional conduct. At issue is the means of meting out justice in the Maldives, with the Maldives lawyers contending that the judge in question was "kidnapped" by the Maldives National Defence Force, an action they believe constitutes a crime against humanity.
So what is the ICC to do with this case? How should chief prosecutor Luis Moreno-Ocampo and the Office of the Prosecutor (OTP) proceed? It should be clear to even the most ardent supporter of the ICC that they should proceed with little to no acknowledgement of the case for legal, political and financial reasons.
From a legal perspective it is questionable whether the case even falls under ICC jurisdiction. According to the Rome Statute of the International Criminal Court, the ICC has "jurisdiction over persons for the most serious crimes of international concern." These "most serious crimes" include genocide, war crimes, crimes against humanity and beginning in 2017, the crime of aggression. The question is whether the actions in the Maldives case constitute a serious crime of international concern.
We can begin by addressing what crime under ICC jurisdiction was allegedly violated. The opposition parties in the Maldives are claiming that this detention is a crime against humanity. According to the Rome Statute, "imprisonment or severe deprivation of individual liberty" does constitute a crime against humanity. The opposition also claims that the government's failure to disclose the judge's location for 48 hours constitutes "enforced disappearance." However, in order for the ICC to consider either action a crime against humanity, it must be "committed as part of a widespread or systematic attack directed against any civilian population." If the detention of this high court judge violates the Maldives Constitution [PDF] it is certainly a crime, but the lack of systematic and/or widespread detentions excludes such an alleged crime from rising to the level of crimes against humanity. As a result, the ICC does not have jurisdiction.
Along with this basic jurisdictional issue there is also the question of complementarity. During the stocktaking portion of the Kampala Review Conference it was determined that "positive complementarity" was essential in ending impunity given the limited resources of the Court. The principle of complementarity states that the ICC shall only have jurisdiction when a state is unwilling or unable to prosecute. If a state with jurisdiction over the case is taking appropriate legal steps to resolve the situation the case is inadmissible before the ICC. The notion of positive complementarity stresses the importance of this relationship between the ICC and domestic judicial proceedings and places an increased burden on the member states to resolve their own judicial issues, but always with the specter of the ICC looming over their actions. Therefore, it is important to see how the Maldives government reacts to this criticism. However, at this point in time it is difficult to discern whether the principle of complementarity is or is not applicable in this case.
Along with these legal considerations there are also political considerations involved. Although the charges levied against the Maldives government are significant, do they hold the gravity necessary to initiate ICC proceedings? There is no way to quantify the notion of gravity (as stated in the Rome Statute), but Ocampo himself has stated that the purpose of the Court is to end impunity in the most horrific of cases. Given the fact that the ICC has investigated, but not opened, formal proceedings in Afghanistan, Columbia, Georgia, Guinea, Honduras, Korea, Nigeria and Palestine, it seems fair to say that the Maldives case does not display the level of atrocities and/or the lack of governmental action that is needed for ICC intervention. It would be difficult to argue that the scale and scope of the crimes committed in these situations does not far outweigh those of the Maldives. As a result, the ICC accepting this case would be a major political blunder because it would represent a monumental judicial overreach that would result in significant damage to the Court's credibility. Many states in the international community remain wary of the ICC's reach and if the OTP were to open a case concerning the detention of one judge it would show their desire to be overly involved. Some may even claim such action as a violation of state sovereignty the exact reason why the Rome Statute contains the principle of complementarity.
Finally, involvement of the Court in such cases would hinder the financial stability of the ICC. Unfortunately, the Court does not have unlimited resources. Again, as stipulated in the stocktaking exercise of the Kampala Review Conference, member states recognize the Court's limited resources. It is best for the OTP and its member states to concentrate these resources on the cases that entail large-scale atrocities. Any other course of action could prevent the Court from engaging in future investigations and prosecutions.
The ICC's best course of action is to steer clear of such low-level situations. Intervening in the Maldives would be opening Pandora's box and stretching the ICC to the breaking point not only legally, but politically and financially as well. If advocates of the ICC (whether that means member states, NGOs or others) want a truly effective Court, then they must be prudent in their advocacy of cases and accept that the purpose of the Court is to prosecute those crimes that hold sufficient gravity. Currently, the Maldives simply does not fit that criteria.
Eric Leonard is the Henkel Family Chair in International Affairs at Shenandoah University. His primary areas of expertise are global politics, foreign policy, human rights, humanitarian law and political philosophy. He has published several articles and is the author of The Onset of Global Governance: International Relations Theory and the International Criminal Court.
Suggested citation: Eric Leonard, Stretching the Mandate: ICC Action in the Maldives, JURIST - Hotline, Feb. 8, 2012, http://jurist.org/hotline/2012/02/eric-leonard-icc-jurisdiction.php.
This article was prepared for publication by Stephen Krug, an assistant editor of JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org