Master Thesis Political Science
The (un)fairness of the referral of situations from the
United Nations Security Council to the International
Criminal Court
Author: Theresa Eberle Supervisor: Sara Kendall
Research Project: Politics of International Law Date: 27/06/2014
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Content
1. Introduction ... 3
1.1. The Topic of the Non-Commitment in the Case of al-Bashir ... 3
1.2.Approach ... 4
2. The Case of al-Bashir and the Referral of Situations from the UNSC to the ICC ... 9
3. Fairness in International Law and its Different Perceptions ...14
3.1. Fairness in International Law ...15
3.2. Indicators of Procedural Fairness ...21
3.3. Various Perceptions of Fairness ...26
4. The (un)fairness of the mechanism of referrals from the UNSC to the ICC and possible alternatives ...29
4.1. Method and Choice of Sources ...29
4.2. The different perspectives on the (un)fairness of the referral of the situation of Darfur from the UNSC to the ICC ...31
4.3. The Interpretation of the Results and the Reflection on the Community ...38
5. Conclusion ...40
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1. Introduction
1.1. The Topic of the Non-Commitment in the Case of al-Bashir
The International Criminal Court (ICC), legally based on the Rome Statute, was established in 2002 to “help end impunity for the perpetrators of the most serious crimes of concern to the international community” (ICC, 2014a). In 2012, the ICC had its 10th anniversary. Even if this was a reason to celebrate the existence of the first permanent international criminal court, the last years have showed that the ICC has to face many challenges. While the ICC is on the one side trying to convince states to join the ICC and therefore, to increase its number of 112 members (Kaul, 2013: 194), it has on the other side to deal with several setbacks concerning its relation with the African Union (AU) (Keppler, 2012: 2). For this reason, the ICC is claimed by some actors and scholars to be in a (legitimacy) crisis concerning the relation with the AU (Keppler, 2012; Tladi, 2013: 200; Reinold, 2012: 1078).
There are several events which might possibly indicate this crisis. First, several African countries frame the ICC nowadays as an “anti-African institution” justified by the fact that so far the ICC only has situations of countries located in Africa (Keppler, 2012: 6). This crisis even led to the call of several AU-members to retreat from the ICC (BBC, 2013). Indeed, the Kenyan parliament voted for the withdrawal from the ICC (The guardian, 2013). Further the situation had led to the consequence that there is a discussion within the African Union to establish an African Court of international criminal jurisdiction (Abass, 2013: 933ff.; Murungu, 2011). In addition, the African Union organized an extraordinary session in Addis Adeba in October 2013 to discuss its relation with the ICC. On this summit it was decided that no head of state of an AU-member state should have to face an international trial while being in office (Ext/Assembly/AU/Dec.1(Oct2013): 10.i). The support of initiatives from the ICC, such as the establishment of a liaison office to the AU in Addis Ababa to improve the communication with the AU, were refused by the AU (Maru, 2013).
Another setback for the ICC was and still is the non-cooperation of several AU-member states concerning the arrest warrant of Sudanese president al-Bashir (Keppler, 2012: 2). On March 31 2005 the United Nations Security Council (UNSC), acting under Chapter VII of the Charter of the United Nations (UN-Charter), has adopted a resolution to refer the situation1 of Darfur to the ICC (U.N. DOC S/RES/1593 (2005)). The resolution states that “the situation in Sudan continues to constitute a threat to international peace and security” (U.N. DOC S/RES/1593 (2005)). As a result, after investigations against six individuals by the Office of the Prosecutor (OTP) of the ICC, the Pre-Trial chamber requested several arrest warrants in
1 The term ‘situation’ is used in the Rome Statute to indicate that not a single individual, but that the situation in a
4 2007, 2009, 2010 and 2010 (ICC, 2014b). Two arrest warrants were requested against the Sudanese president al-Bashir2. The reason for the popularity of this case is that it was the first time that a present head of state was indicted before the ICC (Barnes, 2011: 1586). However, al-Bashir and other co-perpetrators could not be arrested so far due to several reasons (ICC, 2014b). First, the AU called its member states not to cooperate with the ICC concerningu the arrest warrant of al-Bashir (Assembly/AU/Dec.244(XIII) (2009): 7); Assembly/AU/Dec.296(XV) (2010): 5)). Secondly, there are several states, such as Chad, Malawi, Djibouti and Kenya, which followed this call of non-cooperation by the AU in refusing to arrest al-Bashir when he visited these countries. They justified their non-commitment in arguing that an arrest of president al-Bashir would be a security threat for the whole region (Keppler, 2012: 2, 11, 13; Tladi, 2013: 200). These countries, which are members of the ICC, are obliged, according to part 9 of the Rome Statute (U.N.DOC. A/CONF.183/9 (1998)), to cooperate and to support the execution of arrest warrants. These obligations include arresting individuals, who are searched by an arrest warrant, once they enter the territory of a member state (Keppler, 2012: 11). Most of all, this cooperation of member-states would be essential for the efficacy of the ICC as it lacks other enforcement mechanisms such as a military or police units to execute arrest warrants (Sadat/Carden, 2000: 415).
This non-cooperation could be regarded as one indicator for the legitimacy crisis of the ICC. The Rome Statute (U.N. DOC: A/CONF.183/9/ (1998)) is a binding treaty for its member states and therefore this form of non-commitment can be regarded as a violation of the treaty. Most of all the call of the AU not to cooperate with the ICC3 can be regarded as great setback for the ICC. Therefore, this non-cooperation poses the question: How can the resistance of several African states to the International Criminal Court by not committing to the arrest warrant of al-Bashir and his co-perpetrators be understood?
1.2.Approach
The Mechanism of the Referral of Situations from the UNSC to the ICC and the Relevance of its Critical Reflection
There has been a great discussion about how this non-commitment of several African states could be explained. For instance, one of the explanations, which will be analyzed in chapter 2, was that the arrest of al-Bashir could lead to a destabilization in Darfur region (Keppler,
2
The first was issued March 4 2009 for war crimes and crimes against humanity (ICC-02/05-01/09-1 (2009)) and the second one on July 12 2010 for crimes of genocide (ICC-02/05-01/09-95 (2010)).
3 However, it is important to be aware of in this thesis, that this non-commitment is only exercised by some members of the AU. Thus, not only many civil society groups in African states but also several states such as South Africa and Botswana support the arrest warrant against al-Bashir and stated explicitly their commitment (Keppler, 2012: 5, 12f.). Thus, concerning the issue of the arrest warrant of al-Bashir the African Union cannot be regarded as one united institution (Welz, 2013: 425; 434ff.).
5 2012: 11; Jalloh, 2012: 212ff.). However, there is one aspect which has not been examined in detail in the context of the case of Darfur. This is the critical reflection of the mechanism of the referral of situations from the UNSC to the ICC. Notably, as Sudan is not a member state of the ICC, the exercise of jurisdiction over the situation of Darfur by the ICC, without the consent of the Sudanese government, would not have been possible (Akande, 2003: 635f.). Especially as the consent of the Sudanese government, to refer voluntarily its case to the ICC would have been unlikely, considering that al-Bashir as the president of Sudan is a part of this government. Thus, the referral of the situation of Darfur from the UNSC to the ICC can be considered as the only logical option for the ICC to exercise jurisdiction over al-Bashir and his co-perpetrators. Consequently, it can be questioned if this mechanism of the referral is also the reason for the non-commitment of several African states towards the arrest warrants.
Why the mechanism itself and the refusal to arrest al-Bashir could be connected has to be illustrated in detail. This illustration will demonstrate why the detailed examination is relevant to explain the non-commitment of several African states towards the arrest-warrants of al-Bashir and co-perpetrators. To begin with, if all African states would have committed to the arrest-warrants of al-Bashir and his co-perpetrators, the mechanism of the referral of situations from the UNSC to the ICC could have been regarded as effective. Effectiveness in this context means that a certain institution or process is producing the consequences which are expected from it (Franck, 1995: 7). Thus, the process of the referral of the situation of Darfur should have led to the arrest and the prosecution of al-Bashir and his co-perpetrators as it was intended by this referral. However, as the case of Al-Bashir has demonstrated, the mechanism was not effective as the referral of the situation from the UNSC to the ICC did so far not lead to an arrest warrant of al-Bashir and therefore the purpose of this mechanism, to support the peace process was not reached (Tladi, 2013: 200). Thus, due to the non-commitment of several African states concerning the arrest warrant the mechanism can be regarded as ineffective. This leads to the question how this ineffectiveness can be explained.
The Concept of Fairness
One way to explain this ineffectiveness can be given by the concept of fairness. As it will be explained in detail in chapter 3 there exist two forms of fairness: procedural fairness and process fairness. In the context of this thesis, process fairness will be defined as how a certain rule or mechanism is perceived as fair or unfair by an actor (an individual, a collective of individuals or states) according to ‘procedural fairness’ during an application process. This procedural fairness can be defined as the fairness of a mechanisms’ attributes according to certain standards. In order for a mechanism to be effective the use of this mechanism, during an application process for a certain case, must be perceived by actors as (process) fair
6 (Franck, 1995: 7, 26, 32f.). This perception of the fairness of the process is made according to certain standards, which refer to the attributes of a rule such as such as the standard that the rule must be applied by actors which are authorized to apply this mechanism (Franck, 1995: 7, 26). The attributes can also be regarded as features of the mechanism. For example the mechanism to refer situations from the UNSC to the ICC has the feature that it is applied by the UNSC, an institution which lacks democratic structures (Forsythe, 2012: 841). Consequently, if these standards are (procedurally) unfair, also the application of the mechanism with these standards, might be perceived as (process) unfair by certain actors (Franck, 1995: 7). As a consequence, actors who perceive this mechanism as (process) unfair might not commit to the decision reached through this mechanism. As a result the mechanism becomes ineffective as it does not reach its purpose. Therefore, unfair attributes of a mechanism and the use of this mechanism in a certain case could be regarded as an explanation for the non-commitment of certain actors towards the decision, produced through this mechanism.
This theoretical argumentation and this concept will be applied to the case of the referral of the situation of Darfur from the UNSC to the ICC (see chapter 4). It will be argued that the attributes of the mechanism of the referral of situations from the UNSC to the ICC, under Art. 13b RS and authorized through Chapter VII of the UN-Charter, can be regarded as unfair according to these standards (procedural unfairness). The perception of these standards as unfair by certain actors during the application of this mechanism in the situation of Darfur (process unfairness) can be an explanation for the non-commitment of these actors concerning the arrest-warrant of al-Bashir and its co-perpetrators.
Thus, the purpose of this thesis is to analyze if the unfair process of the referral of the situation of Darfur from the UNSC to the ICC, caused by the unfair attributes of this mechanism, can be regarded as an explanatory factor for the non-commitment of several African states towards the arrest warrants of al-Bashir and its co-perpetrators. Moreover, the main aim of this thesis is the critical analysis of this mechanism. However, the importance of the human right to freedom from violent abuse and the importance for justice for victims should not be denied through criticizing this mechanism. Thus, this thesis will primarily analyze a problem, but also state briefly some alternatives or solutions (chapter 5).
Argumentation and Structure of this Thesis
As illustrated, the main argument of this thesis is that the unfair process of the referral of the situation of Darfur from the UNSC to the ICC, caused by the unfair attributes of this mechanism, can be regarded as an explanatory factor for the non-commitment of several African states towards the arrest warrants of al-Bashir and its co-perpetrators. In order to
7 prove this argument and in order to answer the research question of this thesis, namely how the resistance of the non-commitment of several African states towards the arrest warrant of al-Bashir and his co-perpetrators can be understood, several steps have to be undertaken. Each step will be elaborated in one chapter or part.
First, it has to be elaborated upon why the concept of fairness would contribute to the current discussion about the non-commitment of several African states towards the decisions of the ICC (chapter 2). Therefore, explanations for this non-commitment in the context of the situation of Darfur, discussed in literature will be presented. It will be argued in this part that, while many authors gave adequate explanations for this non-commitment, none of them framed their work under the concept of fairness.
The third chapter will explain in detail the theoretical framework of this thesis which will also deal as a framework for the analysis. In this chapter the concept of fairness, its relevance as an explanation for non-commitment and its distinguished elements will be explained. Further, the four standard factors will be presented according to which the attributes of the mechanism can be analyzed (procedural fairness). Moreover, it will be examined how this procedural fairness can be perceived in different ways by different actors.
Finally the analysis in chapter 4 consists of three parts. The first part will present the applied method and the used documents. The second part will contain the analysis. For example, this part will argue that the countries represented in the UNSC have the authority to exercise jurisdiction over non-member states of the ICC. In addition, there are three veto powers in the UNSC, China, the USA and Russia, which are also non-member states of the ICC (United Nations Treaty Collection, 2014) but to whom this Art. 13b Rome Statute could not be applied to, due to their veto power (Triffterer, 2008: Art. 13 marginal note 4). Due to these and other reasons which will be examined in the analysis, the given attributes of this mechanism can be regarded as unfair. Most of all it will be analyzed if these unfair attributes of the mechanism were also perceived by actors as unfair during the application process of this mechanism in the situation of Darfur. The third part of this chapter will summarize the findings and interpret them in the context of the non-commitment of several African states concerning the arrest warrants of al-Bashir and his co-perpetrators.
Case Selection, Actors and Method and Sources
This analysis will be conducted with the case of the referral of the situation of Darfur from the UNSC to the ICC. The analysis of this case will support the findings of the theoretical framework. This case was selected as the purpose of this thesis is to examine if the perceived unfairness of this mechanism can explain the non-commitment of several African states towards the arrest warrant of al-Bashir and its co-perpetrators. Therefore, only the
8 actors’ perceptions in this case of the referral of Darfur are relevant. In fact, if the purpose of this thesis would have been to analyze the fairness of the mechanism in general, the referral of the situation of Libya from 2011 would have been equally relevant to analyze (U.N. Doc S/RES/1970 (2011)).
This thesis applies a mixed methodology consisting of elements from discourse analysis as well as content analysis. The main sources used in the analysis will be tertiary sources as well as primary sources in order to analyze the attributes of the mechanism. For the analysis of the perception of the process fairness, primary sources will be used such as official documents of the UN, the AU and the Assembly of State Parties of the ICC. The detailed choice of method and sources, as well as their limitations, will be examined in detail in part 4.1. and will therefore not be elaborated upon further in this part.
The actors dealt with in this analysis are states as well as collectivities of states, such as the African Union as a regional organization and the Assembly of State Parties of the ICC as an institution. The actions of these actors will be analyzed through a liberal and constructivist view. On the one hand, as the mechanism of an institution will be examined, liberal views are important in this thesis which stress the importance of institutions for the resolution of international problems (Dunne, 2011: 108). Slaughter even states the topic of the jurisdiction of the ICC as a good example for which a liberalist approach is adequate (2011: marginal notes 17f.). In addition, a constructivist view is important for this thesis as constructivism also includes aspects of culture, institutions and norms as an explanation for the actions of states in international relations (Brunnée/Toope, 2000: 20f.). In fact, constructivism states that the meaning of a certain object, such as an international institution, is socially constructed in the context of different factors such as ideas or beliefs (Slaughter, 2011: marginal note 20). Thus, a constructivist approach is necessary to analyze the different perceptions on process fairness by the actors.
Main findings
The main findings of this thesis are, first, that the concept of fairness by Franck contains certain critical elements and can therefore only be used in a limited way. The second finding is that the use of official documents as primary sources are not an adequate source to analyze the concept of fairness. Further, it can be concluded of the findings that whether the mechanism can be regarded as fair or unfair depends on how the receptionist of fairness is constructed. Thus, the reception of the mechanism of the referral of situation from the UNSC to the ICC can be perceived as fair or unfair, depending on the construction of the receptionist. Finally, as fairness can consequently be regarded as a social construction, depending on the receptionist, the attributes of the mechanism can be perceived by certain
9 receptionists as unfair and thus, also the application of this mechanism in the case of Darfur could be regarded as unfair. Thus, as the commitments of actors to commit on the arrest-warrant of al-Bashir relies on the perception of this referral rule as fair, it can be concluded that in the view of certain actors the unfairness of the referral mechanism can be regarded as an explanatory factor for the non-commitment of several African states towards the arrest-warrant of al-Bashir.
Relevance of this Thesis
These findings and the theoretical analysis of this thesis are relevant for several reasons. First, they have a certain value for the ICC itself. The analysis of the mechanism of Art 13b Rome Statute is demonstrating the practical problem that it has a lack of effectiveness. Thus, this analysis illustrates that due to the unfair attributes resulting in an unfair application process from the perspective of some actors, it is not leading to the wanted result of the arrests of al-Bashir and his co-perpetrators. Therefore this thesis is important to indicate that the ICC should probably rethink critically its mechanisms of exercising jurisdiction. In fact, a change of this mechanism towards an increase of fairness may lead to a reflection of some African states concerning their willingness to cooperate with the ICC. Therefore, this paper shows one possible solution to improve this relationship.
For the fields of International Law and International Relations this analysis is equally important. The thesis will demonstrate, that the concept of fairness by Franck (1995) should not be underestimated, as it is important for the analysis of effectiveness of a mechanism and even an institution. Further, this work can contribute to the field of International Law as it will demonstrate, that given treaties, as the Rome Statute, and its consequences should be reflected critically and if necessary changed. Finally in a broader context of International Relations this analysis is as well important to discover other explanations for the tension in the relationship between the ICC and the African Union.
2. The Case of al-Bashir and the Referral of Situations from the
UNSC to the ICC
As stated already above, there are claims that the ICC is in a (legitimacy) crisis. One indicator for this crisis is the non-cooperation of several states regarding the arrest-warrant of al-Bashir as explained in the introduction (Keppler, 2012: 2). In this part the current debate concerning this topic will be analyzed. In order to answer the research question of this thesis – how the resistance of the non-commitment of several African states towards the ICC can be understood – it is important to first examine what has been written so far in literature
10 about this non-commitment in the case of the arrest warrants of al-Bashir and its co-perpetrators. A brief overview about explanatory factors in literature for this non-cooperation of several African states concerning the arrest-warrant of the Sudanese president al-Bashir will be given. Further, it will be argued, that the attributes of the mechanism of the referral of situations from the UNSC to the ICC has not yet been discussed in detail in the case of the referral of the situation of Darfur. Therefore, certain discussion about Art. 13b RS will be outlined. However, as a complete and extensive literature overview about these topics is not the main purpose of this thesis, this chapter will be kept brief.
The Case of al-Bashir and Explanatory Factors for Non-Commitment
A great deal of literature has been written about the case of the Sudanese president al-Bashir and the non-cooperation of several African states concerning his arrest warrant. One discussion deals with the security and the stability in the region. Some governments, such as the Kenyan, argued that the visit of president al-Bashir in their countries would be important for the reason of stability (Keppler, 2012: 11; Jalloh, 2012: 212ff.). Keppler believes that justice can be contra-productive for the long-term stability in the region. He argues that a conflict exists between the accountability to hold perpetrators of crimes accountable and the maintenance of stability and peace (Keppler, 2012: 11). Likewise, Babiker discussed the issue of peace in Sudan. He states that once the situation was referred to the ICC by the UNSC, the Office of the Prosecutor (OTP), had to take action and release arrest-warrants against Sudanese leaders due to the principle of complementarity (Babiker, 2010: 84ff.). However, Babiker argues that the ‘supra-national prosecution’ by the ICC would not be the right way to reach peace in Darfur (Babiker, 2010: 99). Besides the recommendation for the Sudanese government to cooperate with the ICC, he suggests alternative forms of justice to fight impunity as hybrid courts and reconciliation commissions (Babiker, 2010: 89ff.; 93ff.). Consequently, the pursuit of peace in the region and the treat of instability could be regarded as one explanation for the non-cooperation of several African states in the case of Darfur. Furthermore, the context of events and the colonial history of Africa have to be considered. Keppler suggests that the non-cooperation of several states of the AU concerning the arrest warrant of the Sudanese president al-Bashir has to be examined in the context of other events in this time-period such as the framing of the ICC by the AU as an “anti-African institution” (Keppler, 2012: 6). The AU justified this framing by the fact that so far the ICC only dealt with situations of states located in Africa (Keppler, 2012: 6). Even so this is true, it can be questioned whether this fact can be blamed to the OTP as an intentional targeting of African states. Indeed, four of the eight current cases of the ICC were voluntarily referred to the ICC by the states themselves, two were referred by the UNSC and only in two other cases investigations were opened by the initiative of the OTP (Keppler, 2012: 6f.). Also
11 Seymour states that there are several African leaders who use hypocrisy as a campaign against the ICC in order to bring through their self-interests. Seymour argues that while hypocrisy in general must not have a negative influence on the legitimacy of an institution, the extent to which rhetorical actions of hypocrisy have been exercised against the ICC, is a threat for the legitimacy of the ICC (Seymour, 2014). The argument that these actions can be regarded as systematic campaign by several African leaders against the ICC is supported by the fact that there are other states such as Botswana and South Africa who declare their continuing support for the ICC and do not regard the ICC as an “anti-African institution” (Keppler, 2012: 5). Keppler and Seymour are therefore making an important contribution to the discussion about the ICC as a neo-colonial institution in differentiating between the various perspectives of distinguished African states regarding the commitment with the ICC and discovering new tactics of some African leaders which target the ICC. Besides this negative framing of the ICC the historical context can be regarded as an explanation for the non-commitment. Keppler is arguing that the unaccountability practiced during colonialism by Western states in contrast to the accountability or the dissimulation of accountability for human rights nowadays has to be taken into consideration (Keppler, 2012: 7). Therefore, history as well as the self-interest of African leaders can be explanatory factors for the unwillingness of several African states to cooperate in the case of Darfur.
Another discussion concerns the immunity of head of state or government. There is a tension between two Articles in the Rome Statute which leads to a conflict concerning the cooperation of the arrest warrant for al-Bashir. On the one hand Art. 27 RS states that there is no immunity for a person with an official capacity such as a head of state or government to be released from the responsibility of its actions. On the other hand, according to Art. 98 (1) RS, states can be released from cooperating with the ICC, for example concerning arrest warrants, in respect of the immunity of the person of a third state for who this arrest warrant was issued. However, Tladi states that the relation between these two articles is not clear and its interpretation was not precisely stated in the court’s decisions (Tladi, 2013: 201ff.). Thus, the non-commitment of states such as Chad and Malawi could be regarded as legal according to the Rome Statute, but were not considered by the Court (Tladi, 2013: 212). Moreover, also Kiyani raises the topic of immunity and argues that al-Bashir would be protected by head-of state immunity (Kiyani, 2013)4. In addition it has been discussed if the principal of complementarity applies also to a case which situation was referred to the ICC by the UNSC (Arsanjani, 1999: 28; Babiker, 2010: 83f.; Fletcher/Ohlin, 2006: 431f.). Therefore, the conflict with other articles of the Rome Statute and unclear interpretations by the ICC can be a relevant factor for the non-commitment of African states.
4
For a more detailed discussion about the issue of immunity in the case of al-Bashir see Tladi, 2013; Kiyani, 2013; Akande, 2009 and Barnes, 2011.
12 In addition, explanations concerning the institutional structure of the ICC should be considered. Fletcher and Ohlin are referring to a very different aspect of the problem of the referrals by the UNSC to the ICC in the case of Darfur, namely the problem of the administration to deal with this new and complex administrative process (Fletcher/Ohlin, 2006: 429). Further, they examined the problems of identification which institution, the UNSC or the ICC, would be responsible for the funding of this referral (Fletcher/Ohlin, 2006: 429f.). Also Barnes gives a detailed analysis of the case of al-Bashir and argues that the ICC would need a more effective enforcement mechanisms then the cooperation of member states for arrest warrants (Barnes, 2011: 1587)5. Thus, the young age of the ICC and its lack of own enforcement mechanisms are contributing to the discussion.
Apart from these explanations, general developments in the international legal system could be important. Dixon found out that some authors see a general tendency in the international legal system away towards regionalization, away from universality. Thus, he claims that an increase in rules of international law for certain regions such as Afrika is possible (Dixon, 2013: 21). Also Murungu describes this development in Africa in analyzing the intention of the African Union to establish a Criminal Chamber in the African Court of Justice and Human Rights, which would resemble an ICC on African territory (Murungu, 2011: 1067f.). One explanation for this development could be the imbalanced application of international justice. Thus, according to Keppler the chance that a leader of a powerful, western, state is being prosecuted before an international court is less likely than leaders from less powerful states (Keppler, 2012: 6). Thus, the developments of the international legal system as well as the current practices of this system could be another explanation.
Consequently, there has been written a great deal about explanatory factors for the non-cooperation of several African states concerning the arrest-warrant of al-Bashir. However, there is one aspect which had not been discussed in detail so far.
The Referral of Situations from the UNSC to the ICC
As Keppler is stating, to analyze the relation between the ICC and the AU, greater attention has to be given to the role of the UNSC (Keppler, 2012: 9f.). Analyzing the role of the UNSC in the context of the ICC can be done in two ways as there exist two possibilities how the UNSC can intervene in the work of the ICC; the referral of situations from the UNSC to the ICC under Art. 13b RS and the deferral of situations under Art. 16 RS. These deferrals mean that the UNSC can defer investigations as well as prosecutions for twelve months. However,
5 This lack of enforcement mechanism has also been analyzed in detail by Turner, but not in the context of the case of al-Bashir: Turner, J.I. 2005, "Nationalizing International Criminal Law", Stanford Journal of International Law, vol. 41, pp. 1-51.
13 as this deferral under Art 16 RS has been discussed extensively6 in the context of the case of al-Bashir it will therefore not be subject of this thesis. What has not been discussed in detail is the other way of the UNSC to intervene into the work of the ICC, in referring situations to the ICC under Art. 13b RS:
There are various works written about the mechanism of Art. 13b Rome Statute. Thus, for example Schabas examines problems concerning the implementation of a referral. He states, that in referring a situation to the ICC the whole legal framework of the Rome Statute would therefore apply to the cases of investigation resulting out of this referral Therefore, also articles of the Rome Statute concerning immunity would be apply to these cases (Schabas, 2010: 7). Further, he argues that as the UN-Charta requires fully commitment in the implementation of UNSC-resolutions and that through the referral these would be referred to the ICC member states. Danner also examines the downsides of this referral by the UNSC in arguing that a possible lack of accountability in the UNSC would prevent cases from being referred to the ICC by a veto-power state and therefore would have an impact on the legitimacy of the ICC, due to a lack of possible actions (Danner, 2003: 526).
However, most work in the context of Art. 13b RS has been written in the context of universal jurisdiction and jurisdiction over non-party states. Jurisdiction over non-party states is given when the ICC has the authority to prosecute an individual whose state of nationality is not a member state of the ICC as it did not ratify the Rome Statute (Morris, 2002: 593). Besides other ways to exercise jurisdiction over non-party states which are dependent on the consent of the state on which territory the crime was committed7, the referral of a situation from the UNSC to the ICC under Art. 13b RS, is the only way in which jurisdiction over non-party states can be exercised by the ICC without the consent of the state on which the crime was committed (Akande, 2003: 635f.).8 This is possible due to the fact that not states, but
6
The deferral of the situation of Darfur was demanded by the AU in order to maintain peace in the region but was not granted so far (Falligant, 2010: 744; Jalloh et al., 2011: 40ff.). There have been several discussion concerning this mechanism of deferral. Reinold criticizes that this decision has to be made by the UNSC, consisting of mostly Western countries, which so far lacked to take any responsibility (Reinold, 2012, 1090). However, Falligant argues, that if the UNSC would grant such a deferral it would the ICC would not gain in legitimacy but that it would harm the ICC as an institution as the ICC would then be unable to fulfill its task of deterrence and ending impunity (Falligant, 2010: 728; 751ff.).
7 Further, there exist two other ways in which jurisdiction over non-party states can be exercised. The first way is when an individual from a non-party state has committed a crime on the territory of a member state of the ICC or if this individual has accepted the jurisdiction by the ICC (Art. 12(2)a and 12(3) RS). The second possibility is that a non-part state agrees that jurisdiction over a national of its state might be exercised (Art. 12(2)a and 12(3) RS.). For further discussions on the exercise of jurisdiction under Art 12(2)a and (3) RS see Akande, 2003; Schabas, 2010 and Scharf 2001.
8 About jurisdiction over non-party states in general, thus, including all the three ways of the ICC, there has been written a great deal. Scharf (2001a) analyzes the jurisdiction over non-party states in a very general sense. Schabas (2001) examines the role immunity plays when jurisdiction over non-party states is exercised. Further, Roscini (2006) examines the bilateral treaties made by non-member states of the US, such as the US, to save their nationals from being prosecuted through the exercise of jurisdiction over non-member states. In addition, Goldsmith (2003) and Scharf (2001b) are analyzing the role the US, as a non-members state is playing in the
14 situations are referred to the ICC, and therefore also crimes committed in countries of non-member states can fall under the jurisdiction of the ICC (Sadat/Carden, 2000: 410). Consequently, through this mechanism the ICC gets a nearly universal scope of its possibility to exercise jurisdiction (Sadat/Carden, 2000: 412). Thus, it was only possible through the existence of this mechanism for the ICC to exercise jurisdictions over individuals which have committed crimes in Darfur. However, it will be referred back to these two discussions in the analysis (part 4.2.) and will therefore no be elaborated in detail in this part.
Consequently, this analysis of the existing literature has demonstrated several points. First, there are many relevant factors which explain the non-commitment of several African states towards the arrest-warrants of al-Bashir and his co-perpetrators. In addition, there have been analyzed several aspects in the context of the mechanism to refer situations from the UNSC to the ICC. However, the critical reflection of this mechanism in the context of the case of the referral of Darfur has not been done in detail. Thus, only some attributes of the mechanism have been examined. Moreover, the analysis of this mechanism has not been conducted within the theoretical and analytical framework of the concept of fairness. Therefore this thesis will argue that one possible explanation for the non-commitment of several African states towards the arrest warrants of al-Bashir and its co-perpetrators is the unfairness of the process of the referral of the situation of Darfur from the UNSC to the ICC.
3. Fairness in International Law and its Different Perceptions
In this chapter the concept of fairness in international law will be presented. As just stated, fairness has not yet been used as an explanatory factor for the non-commitment of several African states concerning the arrest-warrant of the Sudanese president al-Bashir. Moreover, procedural fairness and process fairness, two forms of fairness, are ideal to analyze attributes of a mechanism and the perception of these attributes during an application process. Therefore, this chapter will develop a theoretical structure which will deal as an analytical framework for the analysis of this thesis in chapter 4. This framework will be mainly based on Franck’s work about fairness (1995). However, as his concept has certain limits, the concept will be developed further. The first part examines how ‘fairness’ can be understood, what distinguishes it from other terms and why the concept is relevant for the field of international law concerning commitment. The second part will identify four factors of Franck’s concept of fairness (1995) which will help to analyze to what extent certain attributes of a mechanism are perceived as fair. The last part discusses in a constructivist
context of the ICC. Also Morris examined the exceptional structure of the exercise of jurisdiction of the over non-party states in comparison to other international courts (Morris, 2001: 16ff.).
15 way the relevance of various ‘communities’ for the concept of fairness and their various perceptions on fairness.
3.1. Fairness in International Law
Concepts of Fairness
Before an adequate definition of fairness will be approached for the purpose of this thesis, first, it has to be examined which concepts exist about fairness. The work “Not fair!: The typology of commonsense unfairness “ by Finkel (2001) is about fairness. He examines
unfairness not specifically in the field of International Law but more in a general way. He regards unfairness in a psychological, historical as well as in a conceptual and empirical context (Finkel, 2001). In addition, his work focuses on the subjective judgment of unfairness of a single individual (Finkel, 2001). However, as Finkel does not specifically write about the fairness of procedures, this concept of Finkel will not be used as the basis of the analytical framework of this thesis. However, in part 3.3. aspects of his work will be used in order to critical reflect on the existence of the community of Franck’s work.
Concerning fairness in a general sense in the field of International Law, there is does not exist great deal of concepts. Tyler analyzed in his work “Why People Obey the Law” how people see fairness in the process of tax payments (2006: 80). However, as this fairness concerns the process on national or even domestic level the results are not relevant for this thesis as the argumentation about the fairness of the process and the procedure of a mechanism cannot be built upon these results. Also Peter refers to fair processes in his work “Democratic Legitimacy” (2009). However, this fair process refers to the process of voting procedures in democratic constituencies and not to institutions and the field of International Law. Therefore, only small aspects of his work will be considered. In addition, Mégret writes in his article “Beyond ‘Fairness’: Understanding the Determinants of International Criminal Procedure” (2009) about fairness in international tribunals. Thus, she focuses on the process of the tribunal itself and the rights of victims, but not on the process of an mechanism’s application which might lead to a tribunal. Thus, her article is not relevant for this thesis. Albin analyzed the role of fairness and justice in international negotiations (2001). For instance she is referring to the aspect of fair behavior during negotiations such as the question if every party in the negotiation process had the same chance to give its input (Albin, 2001: 33). Further, a main question of her work is why parties of the negotiation process consider fairness or justice in their negotiations (Albin, 2001: 13). However, these aspects of fairness of the concept of Albin are too focused on the negotiation process itself and their bargaining processes to use her concept as a main basis for the theoretical frame of this thesis. While Albin is stating in her work good definitions, which will be elaborated
16 upon later, her concept of fairness of mechanisms refer primarily to the negotiation process of a certain rule and not to the application of a rule. Therefore it cannot deal as a main basis for the analytical framework of this thesis. As a result, even less scholars have dealt with the fairness concerning the attributes and the application of a certain mechanism as will be analyzed in this thesis.
However, there is a tendency in the literature that the work “Fairness in International Law and Institutions” by Franck (1995) can be seen as the most important concept about fairness in the field of International Law. In addition, it contains several aspects which make the work relevant for this thesis, even if it is from the year 1995. Franck built this work up on his former book “The Power of Legitimacy among Nations” (1990), to which there will also be referred in this thesis. This concept of fairness by Franck is adequate for this thesis as Franck is stating, that the fairness of a rule can be derived in parts from the text of the rule, from the outcome of the rule and from the method of the institution according to which the rule will be applied (Franck, 1995: 173). Thus, he is analyzing various aspects of fairness, including the mechanism of an institution with which a certain rule is applied. His main focus in his theoretical frame is the linkage between fairness and effectiveness and therefore this concept of Franck is adequate to analyze the connection between a certain mechanism and the non-effectiveness of a certain mechanism and its connected non-commitment.
Franck wrote his work with the background that the system of law has become more complex and has to deal with many aspects of international relations (Franck, 1995: 5). Therefore Franck stressed the connection between the field of International Relations and the field of International Law as the international legal system has an influence on the relations between the actors on international level. He is arguing that this development would raise new questions about the system such as the aspect of fairness (Franck, 1995: 5ff.). Franck analyzed fairness in several fields of international law, such as peace and security or UN peacekeeping (Franck, 1995). Thus, his work contains several aspect of liberalism. For the analyses in his work, Franck created an analytical or theoretical framework of fairness in international law which will be further explained in the following part and which will also deal as a basis for the analysis of this thesis. This framework contains several constructivist elements. Even if Franck did not apply this framework to jurisdiction over non-party nationals, this paper will demonstrate that the concept can likewise be applied to the field of international criminal law. However, this thesis concentrates only on the relevant elements of Franck’s theoretical framework and leaves out detailed results of his empirical analysis and irrelevant arguments of his theoretical argumentation.
17
The Distinction of Fairness from Justice and Morality
To begin with, fairness has to be distinguished from other terms, the different forms of fairness have to be identified and the terms ‘procedural fairness’ and ‘process fairness’ have to be clarified for this thesis. Albin does not to give a brief definition of fairness in her work “Justice and Fairness in International Negotiations” (2001), as she states that a definition of this term would be complex (Albin, 2001: 16). Thus, in order to find an adequate definition of fairness for this thesis it will be approached by distinguishing it from other terms such as justice and morality.
First, the terms morality and justice will be examined. Even if the work of Hart “The Concept of Law” (1994) was not recently published, it is relevant for this thesis as it gives an adequate differentiation of these terms. According to Hart, moral criticism can be expressed through words such as ‘wrong’, ‘bad’ or ‘wicked’ (Hart, 1994: 158). Morality refers to an action itself in contrast to justice, which refers to the structure of an action’s application (Hart, 1994: 158). T Hart is giving a good example to differentiate between these two terms in stating that a father who is cruel to its child is acting morally wrong. However, this man would only act unjust if he would punish one of his children, even though all his children would have done the same fault (Hart, 1994: 157f.). Thus, justice refers to the structure of a certain rule.
Further, Hart states, that fairness or unfairness can be distinguished from justice as fairness does not refer to one single individual but to “classes” of individuals (Hart, 1994: 158) 9. Franck confirms in his book “The Power of Legitimacy among Nations” (1990) this view about justice in stating, that he is not including justice into his concept of legitimacy in international law for the reason that it only concern persons and not collectives such as states (Franck, 1990: 208)10. Thus, the first important aspect of fairness is that it applies to a collective of individuals. In fact, as the referral of situations from the UNSC to the ICC are in respect to a situation, which may include several individuals, this thesis deals with fairness and not justice.
Distinguished Aspects of Fairness
In order to find an adequate definition of fairness for this thesis, distinguished aspects of fairness have to be identified. Albin differs between two forms of fairness: procedural fairness
9
For a more detailed philosophical or theoretical discussions concerning justice see: Rawls, J. 1999, A Theory of
Justice, Oxford University Press, Oxford; Rawls, J. 1958, "Justice as Fairness", The Philosophical Review, vol.
67, no. 2, pp. 164-194.
10
Finkel distinguishes in a different way between fairness and justice. He states that “justice” will appear within the “law”, whereas “fairness” may be more applicable to everyday life and relationship.” (Finkel, 2001: 46). This means that Finkel does not primarily distinguish between the number of individuals to whom these terms apply, but about the content. He further states that justice refers to legal and political aspects, whereby fairness would be more connected to ethics such as “fair games”, “fair competition” and “fair bargaining” (Finkel, 2001: 48). However, this distinction is not relevant for this thesis.
18 and process fairness. According to her the “essential distinction is that procedural fairness concerns the features of the mechanism themselves, while process fairness refers to how the mechanism are actually used (for example, in a good faith and without bluffing)” (Albin, 2001: 39). This differentiation is essential for this thesis. As the process fairness refers to the use of the mechanism, during a negotiation process, and the procedural fairness concerns the attributes of this mechanism. For this thesis, both aspects are relevant as the attributes of the mechanism as well as their perceptions during an application process will be analyzed. However, while this differentiation is essential, the concept of Albin itself is not relevant for this thesis, as it only refers to the negotiation process of a certain rule and not to the application process.
This distinction between process and procedural fairness is not existent in Franck’s work “Fairness in International Law and Institutions” (1995). As also criticized by Trimble (1997: 1959), Franck not only uses the terms alike, but also mixes its distinguished elements. While he uses in one part of his work the term ‘procedural fairness’ (1995: 7) he uses the term ‘process fairness’ in the same sense in a different part (1995: 22). Further, while his general claims about fairness and the relevance of his concept are referring to process fairness in Albin’s sense, only his four standard factors of a mechanism refer to procedural fairness and thus, refer to the attributes of a mechanism. These four factors will be presented in chapter 3.2. However, in order to state the relevance of procedural and process fairness as an explanation for the commitment of states, several aspects of Franck’s concept have to be examined, despite his mix of terms. In fact, one cannot accuse Franck’s work of being wrong. It can only be criticized in failing to make a concrete distinction between process and procedural fairness.
Franck claims to differentiate between two forms or aspects of fairness within the legal system: substantive fairness and procedural fairness, although, the latter will be referred to in this thesis in Albin’s sense as ‘process fairness’ (1995: 7). The substantive fairness is also called distributive justice. This aspect of fairness is defined by the “degree to which the rules satisfy the participants’ expectations of justifiable distribution of costs and benefits” (Franck; 1995: 7). In most cases this aspect of fairness refers to international tribunals and the principle of equity (Franck, 1995: 47f.). The equity theory refers to the calculation of the equity of certain inputs and outputs in comparison to other inputs and outputs (Finkel, 2001: 51). Hence, the principle of equity refers to objective calculations of the equity within a tribunal-process. Thus, as international tribunals themselves are not subject of this thesis, this aspect of fairness will not be regarded as relevant for this thesis and, thus, not be explained further.
19 The second aspect of Franck’s concept of fairness is process fairness, to which Franck refers as procedural fairness. However, in order to avoid confusion, in this thesis it will be referred to it as ‘process fairness’. Franck defines this term as “the extent to which the rules11 are made and applied in accordance with what the participants perceive as right process.” (Franck, 1995: 7). This definition contains several aspects. First, it states that the participants judge the negotiation and the application of a rule towards its extent of process fairness. In detail, process fairness cannot be only seen as fair or unfair but there exist many degrees of fairness between these two extremes. This continuum between fairness and unfairness is also proven by Finkel (2001: 5f.). In addition, process fairness is perceived by participants and is therefore not objective. As Franck states: fairness is “a human, subjective, contingent quality” (Franck, 1995: 14). Thus, procedural fairness can be regarded from different perspectives which will be elaborated more detailed in part 3.3.
The Relation between Process Fairness and Procedural Fairness
The most important aspect of this definition of process fairness is the element of the ‘right process’. The definition states that process fairness depends on whether a certain rule is applied according to a right process. Franck is further explaining that in order to reach this right process decisions have to be made “by those duly authorized” (Franck, 1995: 7). This authority is one of four factors stated by Franck in a later part. According to Trimble, this part refers to the attributes of a certain mechanism (Trimble, 1997: 1959). Thus, a justified authority is one way in which a right process can be reached. Also Franck refers in a part of his work to these attributes which are important to reach a right process:
It is only by reference to a community’s evolving standards of what constitutes right process that it is possible to assert meaningfully that a law, or an executive order, or a court’s judgment, or a citizen’s claim on a compatriot, or a government’s claim on a citizen, is legitimate. (Franck, 1995: 26)
Thus, Franck states that attributes of a mechanism can be examined according to certain standards of fairness, or more precisely, concerning procedural fairness. Thus, these attributes of a mechanism, or also called procedural fairness, are necessary in order for an actor to state if it perceives the process of a certain mechanism as fair or unfair.
In addition, out of this statement another important differentiation between process and procedural fairness can be made. It seems that as these attributes of a mechanism are perceived by Franck as standards, it can be presumed that he considers them as objective. Thus, procedural fairness is not dependent on how it is perceived by communities. Therefore, it can be stated, that, while procedural fairness has to be considered as more objective - as it refers to the attributes or the standards of a mechanism - the process fairness is subjective, as it refers to different perspectives how a certain use of mechanism
11
20 with certain attributes is perceived by various actors or communities in the application process of this mechanism in a certain case.
The Relevance of Process Fairness for Non-Commitment
As just stated, the process fairness of a certain mechanism is dependent on its procedural fairness. However, in order to answer the research question of this thesis, it has to be examined why process unfairness can be considered as a relevant factor for the non-commitment of states in regard to certain rules or decisions. Thus, the importance of process fairness for non-commitment has to be analyzed.
As Franck is stating: “To be effective, the system must be seen to be effective. To be seen as effective, its decision must be arrived at discursively in accordance with what is accepted by the parties as right process.” (Franck, 1995: 7). This means, that the effectiveness of a system is dependent from the process fairness, which was just discussed12.
Further, this process fairness has an effect on compliance. Franck states that the greater the process fairness of a rule, the greater is the commitment for compliance (Franck, 1995: 26, 32f.; Franck, 1990: 210). This compliance is especially important for an institution which does not have strong enforcement mechanisms and is dependent on the voluntary obligation of its member states (Koh, 1997: 2603). This means that the compliance or obligation towards a treaty or the commitment to a decision by an institution is dependent on its process fairness. In addition, as stated above, the process fairness is dependent upon the procedural fairness. Consequently, the commitment towards a certain decision, is dependent on the attributes of the mechanism, through which this rule is applied. This connection, between procedural fairness, process fairness and commitment is essential for this thesis, as it explains the possible importance of the concept of fairness for the non-commitment of several African states concerning the arrest-warrant of al-Bashir, which will be analyzed more detailed in chapter 4.
Consequently, it can be said that there are three main aspects or forms of fairness: the procedural fairness which refers to the attributes of a rule’s mechanism, the process fairness which concerns the use of a mechanism and the distributive justice, which is not relevant for this thesis. For this thesis it is important to consider that the objective, procedural fairness is influencing the subjective process fairness. In order to find out to which extent a law is fair,
12 Franck equalizes process fairness with ‘legitimacy’ (Franck, 1995: 8; 25ff). However, the term ‘process fairness’
will be used in this thesis. Although process fairness might be certain form of legitimacy, the term ‘legitimacy’ is to general, as it might to refer to many different forms of legitimacy and therefore different element. For instance legitimacy in the sense of ‘democratic legitimacy’ refers to the organization of the members’ lives in democratic constituencies and would therefore not be relevant for this thesis as it refers mostly to voting procedures (Peter, 2009: 1; 7). Consequently, in order to be more precisely, in this thesis only the term ‘process fairness’ will be used.
21 Franck argues that two aspects of fairness, a procedural fairness and the distributive justice of the results of this law have to be given (Franck, 1995: 7f.). However, as in this thesis only the process and procedural fairness of a law’s mechanism will be analyzed, and not the general fairness of a law, this aspect of distributive fairness can be neglected in this thesis. Finally, based on these distinctions and examinations, definitions for procedural fairness as well as for process fairness can be formulated. In the context of this thesis, process fairness will be defined as how a certain rule or mechanism is perceived as fair or unfair by an actor (an individual, a collective of individuals or states) according to ‘procedural fairness’ during an application process. This procedural fairness can be defined as the fairness of a mechanisms’ attributes according to certain standards.
3.2. Indicators of Procedural Fairness
In this part there will be examined in detail how procedural fairness can be analyzed. As stated above, parts of Franck’s concept of fairness are concerning process fairness but are labeled as procedural fairness. However, one important part of his work is indeed about procedural fairness. This part presents different factors of procedural fairness, which help to analyze if certain features of a mechanism are procedural fair or unfair (Franck, 1995: 25ff.). As Trimble criticizes correctly about Franck’s concept that these factors presented would refer to the attributes of a rule and not to the negotiation process of a rule (Trimble, 1997: 1959). He states that the factors they might be important in regard to compliance but not when it comes to a process by which a rule is made (Trimble, 1997: 1959). Therefore, Trimble supports the point that the factors which will be presented are about the attributes of a certain mechanism and, therefore, concern procedural fairness. These four indicators are: determinacy, symbolic validation, coherence and adherence (Franck, 1995: 30ff.). While this part is mainly based on a liberal approach, as it contains categories, in the next part (3.3.) a more constructivist approach will be applied.
Determinacy
The first indicator for procedural fairness is determinacy. Determinacy “is the ability of a text to convey a clear message, to appear transparent in the sense that one can see through the language of a law to its essential meaning.” (Franck, 1995. 30). Franck states that this term can also be equalized with “transparency” (Franck, 1990: 52). Franck further argues that texts of treaties which are complex, but state specific details are more determinate then texts which leave a great deal of space for interpretations (Franck, 1995: 31). He states for example that a rule has to state what the concerned parties have to expect (Franck, 1995: 30f.). Chayes and Chayes state the same problem under the term of ‘ambiguity’ and argue
22 that often in negotiation-processes unsolved problems are hidden through vague formulations, leaving space for interpretation of its meaning (Chayes/Chayes, 1995: 10). Thus, a clear formulated text is essential for procedural fairness.
In fact, this indeterminacy can turn into a problem during the application process of a certain rule. Franck argues that if there is a high level of determinacy of a rule, states or a person affected by this rule, will know what to expect and therefore they might be more willing to comply (Franck, 1990: 52). On the contrary, if there is given indeterminacy in a text it is difficult for the actors involved to know what is expected and therefore noncompliance can be justified easier (Franck, 1995: 31)13. Especially in a case of conflict, when an actor does not want to comply with the given rule, indeterminacy can make it easier for an actor to interpret the rule in a broader way and justify its choice of noncompliance (Franck, 1995: 31). Chayes and Chayes argue likewise that in some cases, these vague formulations are also taken as an advantage by some states to bring through their interest (Chayes/Chayes, 1995: 12). Thus, indeterminacy can be (mis)used by actors to interpret treaties in their own ways. However, even if there is given indeterminacy of a certain rule, it still depends on the actor who is interpreting this rule, if it is regarded as process fair or process unfair (Franck, 1990: 61)14. Therefore, it will be examined in the analysis (chapter 4) if indeterminacy was given and how it was perceived by the affected actors.
Authority and Accountability
The second factor of procedural fairness is authority. Franck states that decisions “will be made by those duly authorized” (Franck, 1995: 7). In spite of of this statement of the importance of authority for procedural fairness he lacks defining this term. Even if the work of Raz “Authority” is from the year 1990, it is important as it gives an adequate definition of authority in a general sense. Thus, authority means “to have (a right created by a) permission to do something (which is generally prohibited).” (Raz, 1990: 2). This means that an actor in order to have authority must get a permission to undertake actions. In addition, Tyler states that the “authority enforcing the law has the right to dictate behavior.” (2006: 4).
13
In contrast, Coleman and Leiter argue that indeterminacy has not necessarily to be negative (1993: 560). However, their definition of indeterminacy differs from the definition of Franck and the other scholars. Coleman and Leiter state that a rule is indeterminate “if there is more than one way of fulfilling its demands.” (Coleman/Leiter, 1993: 560). As an example they state the different ways in which charity can be exercised. They argue this aspect cannot be avoided (Coleman/Leiter, 1993: 560). However, Franck would probably argue, that in order to avoid the interpretation of the text, these different ways of fulfillment should be clearly state in the text. Therefore, this definition of Coleman and Leiter will not be considered in this thesis. See: Coleman, J.L. & Leiter, B. 1993, "Determinacy, Objectivity, and Authority", University of Pennsylvania Law Review, vol. 142, no. 2, pp. 549-637.
14
Chayes and Cayes agree that if there is a certain degree of trust in the actors who apply the rules, even broader formulations, thus a low degree of determinacy of a rule, can still lead to compliance (Chayes/Chayes, 1995: 11). However, trust itself is a complex concept and will therefore not be included into this thesis. For more details about the relation between trust and legitimacy in a general sense see: Easton, D. 1975, "A Re-Assessment of the Concept of Political Support", British Journal of Political Science, vol. 5, no. 4, pp. 435-457.
23 This demonstrates that authority means that concerned parties can be forced to follow certain orders. Besides, authority must not be necessarily state authority but can also refer to individuals or a body (of an institution) (Raz, 1990:2f.). Thus, also institutions such as the ICC or the UNSC can have authority.
In the application of a mechanism authority is essential. Franck frames the importance of authority for the application of a rule under the aspect of ‘symbolic validation’. This symbolism signals that the exercise of authority is process fair, as the institution is acting in according with the right process (Franck, 1995: 34). The symbolic validation of a rule can exist through certain attributes for example through ritual or pedigree such as the UN is allowed to show its flag all over the world (Franck, 1995: 34). However, it is probably that the symbolic validation specifically will not play a role in the analysis, whereas authority is expected to be essential for the analysis.
An aspect connected with authority, which is not stated in Franck’s concept, is accountability. Grand and Keohane state: “those who govern are held accountable to the governed.” (Grant/Keohane, 2005: 29). Thus, to have the authority to take actions does not only mean that actions can be undertaken, but also that, if necessary, actions have to be taken. They define accountability as “some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in light of these standards, and to impose sanctions if they determine that these responsibilities have not been met.” (Grant/Keohane, 2005: 29). Consequently, for example in the context of the UNSC, the members of the UNSC, even if they were not democratic elected, have the accountability for its actions to which they have obliged according to UN-Charter. Thus, authority does not only bring certain privileges: Moreover, authority is connected to accountability.
Coherence
Further, coherence is a factor of procedural fairness. Coherence is given when the principles of the rule can be generalized (Franck, 1995: 38). Thus, “likes” have to be “treated alike” (Franck, 1995: 39). Thus, coherence refers to the applicability of a rule. Consequently, if a rule cannot be applied to several situations the rule can be regarded as procedural unfair (Franck, 1995: 38; 136)15. An example for coherence would be that all developing states would not have to pay back their loans. However, if only the developing states with the letter A to M would have to pay back their loans and the states with the letters N to Z not, the applied rule would be incoherent (Franck, 1995: 38). However, Franck emphasizes that
15 In referring to individuals, Raz argues likewise that it would be regarded as unfair to require from certain people to behave in a certain way, while this behavior is not demanded by others (Raz, 1990: 15).
