A court that knows no boundaries?
8 November 1998
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24 June 1997
The international criminal court treaty is a big achievement but can it deliver what it promises? Jonathan Stanley is a London-based writer on law.
British lawyers have played a skilled part in preparing and negotiating the hard-won treaty to establish a permanent international criminal court (ICC).
The treaty, which is the culmination of years of preparatory work, was agreed at a United Nations (UN) meeting of 160 countries in Rome last month. the British diplomatic and legal delegation at the conference was led by Sir Franklin Berman QC, the legal adviser to the Foreign Office.
Nicholas Stewart QC, chairman of the Bar human rights committee, assisted a coalition of non-governmental organisations (NGOs) and human rights organisations from around the world who attended the Rome meeting.
Christopher Hall, legal adviser to Amnesty International, assisted with the framing of the NGOs' arguments, while Stewart conferred with the UK legal and diplomatic delegation. The British effort led to the inclusion of treaty provisions for compensating victims.
The treaty has been welcomed by major human rights organisations such as Oxfam, Amnesty and Save the Children despite its omissions.
The new court is designed to serve the international community's definition of the best interests of countries deemed unwilling or unable to hold such trials themselves.
The inability or unwillingness of a state to uphold humanitarian law will be decided upon by an independent prosecutor, who must also clear his indictments with a pre-trial chamber.
The principle of "complementarity", which requires state parties to convene their own tribunals in the first instance, ensures that the UK and other countries with proper judicial systems should have nothing to fear from the ICC.
The ICC could exercise jurisdiction over a national from a state that has not ratified the ICC statute. If, for example, a suspect from such a state fled to another country, he or she could be handed over to the ICC if the state where the crime occurred had ratified the treaty.
Although it is unlikely that a British national accused of genocide, crimes against humanity or war crimes would be tried by the ICC in the Hague rather than by the UK courts, a problem might arise if an indictee on British soil was a head of state or a sovereign, or entitled to diplomatic immunity. The UK might then prefer to send him or her to The Hague.
Civil as well as international conflicts are covered by the treaty. It does not specify the use or possession of nuclear, biological or chemical weapons or land mines as war crimes but it does include a comprehensive prohibition against the use of "inherently indiscriminate" weapons.
Up to the final hours of the conference, the US persisted with its main, non-negotiable demand that the nation state of the accused had to consent to his or her prosecution as well as the country in which the alleged crime was committed. But it became apparent that this was unacceptable to most other countries. Eventually, the majority forced a final vote, which the US lost. The US now says it will "actively oppose" the permanent ICC.
Among the other countries voting against the ICC was China. India fought to have the use but not the possession of nuclear weapons designated a war crime.
Israel also voted against the ICC. It had previously campaigned for such a court but the Netanyahu government was said to feel that, under the treaty, it was possible that new settlers in the West Bank might be prosecuted.
The painful process which eventually led to Rome began in this country in 1919 with the "Hang the Kaiser" campaign. Yet when the German Supreme Court eventually took over the task of prosecuting 20,000 war criminals, only 12 were convicted.
The Nuremberg and the Tokyo Charters and subsequent trials following World War II were denounced as "victor's justice".
However the groundwork for this treaty was done by the UN General Assembly and the International Law Commission rather than individual states. Their aim was to develop a code of offences and to elaborate a statute for an independent international criminal jurisdiction.
When, by 1992, the Cold War was succeeded by the New World Order it was the UN Security Council which began to manage international justice by mandating the Yugoslavia and the Rwanda tribunals, whose legal basis is arguable.
Now, with an independent court, the international community may have wrested the ball away from the New World Order, just for the moment. Yet the ICC may need the type of policing power that only the Security Council can muster.
And if with 60,000 troops in the Balkans two notorious international "fugitives" cannot be arrested for political reasons, what will the international community do when it does not have the use of troops to enforce the treaty?
More information on the ICC treaty can be found at: www.igc.apc.org/icc
Defining the jurisdiction of the International criminal court
The new ICC has jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression. All states party to the ICC statute are deemed to accept the jurisdiction of the court.
The statute drafted by the International Law Commission in 1994 included treaty crimes, such as those regulating drug trafficking and terrorism. This caused a great deal of consternation among states which argued that such crimes were "regional" rather than "international".
The approach adopted in Rome is more restrictive in order to avoid a court with a piecemeal jurisdiction.
The court will have jurisdiction over war crimes "Sin particular, when [they] are committed as a part of a plan or policy or as part of a large-scale commission of such crimes". To raise the threshold of seriousness in this manner would increase the evidential burden on the prosecution. It may mean that targeted abuses - such as the systematic yet localised rape of women in Bosnia - will fall outside the scope of war crimes. But the inclusion of the words "in particular" seems to imply that war crimes are not solely limited to planned, systematic and widespread abuses.
A transitional provision has been included in the statute by which a state may declare, for a period of seven years after ratification, that it does not accept the jurisdiction of the court over war crimes. This is an unacceptable compromise undermining the status of war crimes as truly universal crimes. It may result in a court with a fragmented jurisdiction, whereby a defendant indicted for war crimes could seek refuge in a state which has made a declaration rejecting the court's jurisdiction.
Preconditions exist before the ICC can exercise its jurisdiction over potential defendants. The alleged criminal activity must be referred to the prosecutor either by states party to the statute, the Security Council or by the prosecutor's own motion. Where a referral is made by a state or the prosecutor, either the state in which the criminal activity is alleged to have taken place or the state of which the accused is a national must be party to the statute.
Gavin Hood is a pupil at 18 Red Lion Court and chair of the Solicitors Human Rights Group.