International criminal court/legal aid. Modern answer to an old problem
7 February 1996
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25 October 2013
While the former Yugoslavia war crimes tribunal in the Hague is trying to secure the co-operation of the international community to prosecute war criminals, Amnesty International is pushing the United Nations General Assembly to form an international criminal court.
The court's aim would be to prosecute the most serious criminal offences in the international community, including genocide, war crimes, drug trafficking and crimes against humanity. The court would be permanent and its jurisdiction would not be limited to any geographical or political boundaries.
Chris Hall, of Amnesty's legal department, says the court is needed because "too often national authorities have either been unable or unwilling to bring serious criminals to trial. There have been millions of victims and only a handful of those responsible have been brought to justice."
The concept of an international criminal court was first suggested after the war crime trials held in Nuremberg and Tokyo at the end of the Second World War. However, because of political factors and the outbreak of the Cold War, it was sidelined for 50 years.
But last year, the International Law Commission (ILC), a group of expert lawyers attached to the UN, drafted a statute outlining how an international criminal court would operate. The statute was presented by the ILC to the UN General Assembly in New York which formed an ad hoc legal committee on the court.
Proposals included the creation of a treaty on the court which would be signed and ratified by all UN member states; the states would then be bound by the court's decisions.
While the concept of the court is still in the formative stages, it is already clear that it will run along different lines compared to the European Court of Human Rights and the war crime tribunal established to deal with cases in the former Yugoslavia. For example, the international criminal court's jurisdiction would not be limited to any specific war zone or political issue and would hold individuals rather than states to blame for crimes.
But before it can get off the ground, the proposed court faces several obstacles over its jurisdiction - which crimes it covers and how its laws will be applied.
According to Jeremy Carver, international law specialist at Clifford Chance, a major problem will be getting individual states to provide consent to the court. "The International Court will be based on consent, which will require the co-operation of the states," he says. "How will you reconcile between the state wanting to prosecute and the court wanting to prosecute?"
Another problem is that definitions of what constitutes particular crimes, such as terrorism, vary in different countries. To be truly effective, the court will have to define universal criminal acts and take a clear stand on violations of human rights such as those in 1989 at Beijing's Tiananmen Square.
The US says the court's jurisdiction should be limited to matters relating to peace and security. But for many third world countries, a more pressing agenda would be the prosecution of drug offenders.
In addition, there are more practical problems, such as how to deal with evidence, what to do with prisoners awaiting trial, and where to base the court.
Chanaka Wickremasinghe, of the British Institute of International and Comparative Law, says: "Some issues are of legal techniques, others will require a political decision."
The Hague war crimes tribunal has provided a modern example of how the court may operate, but according to Carver: "A great many international lawyers who were pressing for the international court before the tribunal was created have a certain amount of resentment against it."
The tribunal has a huge budget - $35 million up to 1995 - and a huge staff. Carver believes the tribunal can be studied and experience gained from its contradictions, successes and mistakes. He adds: "An international court will have a sounder basis and a sounder area of jurisdiction."
The court's need to prosecute serious criminals will have to be weighed against the costs it incurs and the bureaucratic complexities it creates. Rein Mullerson, professor of International Law at Kings College, London, says: "In the overall assessment, the costs are not too high. We can't afford to derail this process." He believes the future of the court will depend on the efforts of Non-Governmental Organisations.
In November 1995, the UN General Assembly decided to give the go-ahead to the preparatory committee to determine how the setting up of the court will continue.
Judging from the difficulties facing the present war crimes tribunal, the creation of an international criminal court, however necessary, has a long road to travel before it can bring its first criminals to trial.
There are several problems facing the proposed court.
Cost - the administration of an international court will be expensive, much of the cost going towards translating documents into the appropriate languages.
Enforcing its power - the court will need to force states to comply with its decrees. At present there are no plans for an international police force to administer the court's demands. Nation states will have to consent to comply.
Defining criminal acts - the court will have to decide on universally determined crimes. The definition of serious crimes may vary in each country.
Prosecuting world leaders - the court will have to decide how to respond to acts by world leaders which are perceived as crimes against humanity, such those as at Beijing's Tiananmen Square.
Jurisdiction - the court will have to determine its relationship to the national courts. It will have to decide if it will act as an international supreme court which supersedes the national courts, or as a prosecutor for crimes which fall within its international jurisdiction.