Christianity and the International Criminal Court
Johan Van der Vyver
In 2021, Johan D. van der Vyver, I.T. Cohen Professor of International Law and Human Rights at the Emory University School of Law, published a three-volume treatise on international criminal law. Volume One deals with The History and Structures of the International Criminal Court; Volume Two is devoted to Crimes within the Jurisdiction of the International Criminal Court; and Volume Three outlines The Functioning of the International Criminal Court. As a member of the NGO Coalition for an International Criminal Court, Van der Vyver participated in the proceedings that culminated in the creation of the International Criminal Court, including the Rome Conference of 1998 and the Review Conference held in Kampala, Uganda in 2010. He initially represented The Carter Center in these proceedings.
International NGO members of the Coalition for an International Criminal Court participated in the proceedings that culminated in the creation of the International Criminal Court, including the Rome Conference of 1998 and the Review Conference that was held in Kampala, Uganda in 2010. A very special component of the proceedings leading to the establishment of the ICC was the role of religious organizations in the drafting process of the Statute of the International Criminal Court. The influence of Christianity in these proceedings can perhaps be subdivided into two main categories: (a) participation of the Faith-Based Caucus in the Coalition for an International Criminal Court, and perhaps, more prominently, (b) the contributions of the Holy See in the drafting of important provisions in the Rome Statute of the International Criminal Court.
The official delegation of the Holy See played a particularly important role in the drafting process. Those contributions included (a) defining the concept of “gender”; (b) specifying the distinction between enforced and forced pregnancies (c) endorsing the protection of privileged communications; (d) insisting on the proscription of weapons of mass destruction; and (e) scrutinizing the requirements applying to judicial appointments. It would be wrong, of course, to assume that these areas were the only ones in which the delegation of the Holy See contributed toward the drafting of the ICC Statute. The delegation threw its weight behind many of the intricate problems that had to be negotiated, it provided assistance in the forging of compromises, and it spoke out strongly against positions that either defied the principle of equal justice for all and the equal protection of the laws or were in any other way not conducive to basic principles of criminal justice.
Perhaps the greatest achievement of the Rome Conference was its positive response to a plea of the Women’s Caucus for Gender Justice to mention gender-specific crimes by name and to afford concrete substance to such crimes. The legislative history of these crimes included elaborate deliberations with members of the Holy See delegation over the exact meaning to be attached to the concept of gender and the distinction between “forced” and “enforced” action.
With respect to the concept of “gender”, concerns of the Holy See were centered upon the possibility that gender might be taken to include sexual orientation, and this could in turn implicate, as instances of persecution, disabilities attached to members of the LGBTQ community by Roman Catholicism and perhaps most of the other mainstream religions, and indeed in many national legal systems. The definition of gender finally decided upon provides: “For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.”1ICC Statute, art. 7(3). This definition was decided upon in negotiations with the Holy See to ensure that lesbians, gays, bisexuals and transgender persons would not come within the enumerated groups protected against acts of persecution.
The Draft Statute for an International Criminal Court that was forwarded to Rome by the Preparatory Committee also included the crime of “enforced pregnancy”, which—as noted by the Holy See delegation—could apply to the prohibition of abortions and thereby implicate doctrines of the Roman Catholic Church. It therefore prompted interventions by the Holy See delegation in Rome to secure precision in ICC usage so as to make it abundantly clear that the crimes within the jurisdiction of the Court would in no way contradict those concerns.
At the Rome Conference, the delegation of the Holy See therefore raised a red flag with regard to the notion of “enforced pregnancy.” Prior to the Rome Conference, the terms “forced” and “enforced” in the context of gender-specific crimes were used interchangeably and without precise conceptual differentiation. But there is a difference. Whereas “forcing” someone to do or to forbear something includes the element of overpowering that person, “enforced” action on the other hand denotes some form of legal or social authorization or superior order that compels or permits the observance or endurance of certain practices. Limitations of access to abortions prescribed by law or dictated by religious doctrine could therefore indeed amount to enforced pregnancy. The delegation of The Holy See was successful in persuading others that this was the case, and “forced pregnancy” was consequently substituted for “enforced pregnancy”.
The pro-life lobby in Rome, particularly the Holy See, nevertheless wanted further guarantees. For that reason, a clause was inserted in the article dealing with crimes against humanity proclaiming that the definition of forced pregnancy must not be interpreted “as affecting laws relating to pregnancy.”2ICC Statute, art. 7(2)(f). A cross-reference to this provision in the article dealing with war crimes was intended to reinforce assurances that the Rome Statute was not concerned with the question of abortion.3ICC Statute, art. 8(2)(b)(xxii). The Holy See thus assumed the task of making doubly sure that the language used in the ICC Statute would not lend itself to abuse at some future date to contradict doctrines of the Roman Catholic Church. In the process, the Holy See initiated a refinement of terminology by distinguishing between “forced” and “enforced” action. This distinction, while not uncontroversial in the human rights community, in itself denoted a significant contribution to the development of international-law usage.
The principles of criminal justice to be applied by the ICC include elaborate rules for rendering privileged communications and information inadmissible. In the context of the present survey, it is important to note that privileged communication within the religious context was of extreme importance to the Holy See, and its delegation succeeded in orchestrating the inclusion in the Rules of Procedure and Evidence of a provision calling for a privileged communication “between a person and a member of a religious clergy”, adding that “the Court shall recognize as privileged those communications made in the context of a sacred confession where it is an integral part of the practice of that religion 4Rules of Procedure and Evidence, Rule 73(3). This means that the priest-penitent confession within the Roman Catholic Church will, as a matter of course, be recognized as privileged.
At the Rome Conference, the question whether or not nuclear weapons should be included in the list of prohibited weapons was particularly controversial. At the Rome Conference, the Holy See delegation testified to the Vatican’s opposition to weapons of mass destruction, which it has consistently acted upon since World War II, for instance by the signing of the Treaty on the Non-Proliferation of Nuclear Weapons of 1968, and by the signing on September 24, 1996 of the 1996 Comprehensive Nuclear-Test-Ban Treaty.
When the qualifications of judges of the ICC were debated, some delegations wanted to insert an age restriction that would disqualify persons who would otherwise be eminently qualified for serving in that capacity. The Holy See strongly, and successfully, opposed the age restriction since it would amount to discrimination pure and simple. The Holy See pointed out in informal negotiations that various forms of discrimination formed the basis of many crimes within the subject-matter jurisdiction of the ICC, and that it would therefore be unwise to institutionalize a form of discrimination in a statute designed to provide legal redress against other instances of discrimination.
It is perhaps important to note in conclusion that state representatives at the Rome Conference were greatly influenced by their political interests. The Holy See might of course also be said to have promoted its parochial self-interests. However, interventions by the Holy See relating to the concept of gender, forced pregnancies, and confidentiality of privileged communications, were clearly informed by doctrines upheld by the Roman Catholic Church and were founded on religious convictions and a moral consciousness and not on assumed self-interests that do not even have the semblance of the dictates of justice and fair play.♦
Johan D. van der Vyver is an I. T. Cohen Professor of International Law and Human Rights at Emory University and a former professor of law at the University of the Witwatersrand in Johannesburg, South Africa. He is an expert on international criminal Law, international human rights law, and public international law and has been involved in the promotion of human rights in South Africa.
Van der Vyver, Johan. “Christianity and the International Criminal Court.” Canopy Forum, January 19, 2022. https://canopyforum.org/2022/01/19/christianity-and-the-international-criminal-court/.