The case for international justice poses problems

The UN feels that an international criminal court would provide justice for those affected by the terrible atrocities but there are serious problems to be overcome, writes Gavin Hood. Gavin Hood is a pupil at 18 Red Lion Court and chair of the Solicitors Human Rights Sub-Group on the International Court.

The twentieth century has witnessed incomprehensible acts of inhumanity.

The invasion and subjugation of Kuwait by Iraq, the genocide in Rwanda and Nagorny Karabakh and the policy of "ethnic cleansing" in Bosnia, have led both "humanitarian law" and "international criminal law" to be seen as hollow misnomers.

The absence of effective international criminal institutions has meant that impunity has become a common feature of "international justice", leading to intractable animosities and resentment.

Would this picture be any different if an international criminal court existed, with jurisdiction to try defendants involved in such grave crimes?

The International Law Commission (ILC) believes that it would. In 1994 the ILC produced a draft statute for a permanent international criminal court, which was presented to the UN General Assembly.

After nearly four years of examination, the UN has decided to hold a diplomatic conference this summer, with a view to adopting a treaty to establish the court.

The risk is that, in attempting to reach an agreement suitable to all nations, the independence and effectiveness of the court could be undermined.

In order to establish an international criminal court, international crimes will have to be defined. The ILC has recognised the need to adhere to the principles of non-retrospectivity and legality in setting out the jurisdiction of the court.

Such principles are fundamental to all criminal systems, in that they provide notice of what the law requires and of the consequences of breaking it. The international court therefore has strictly defined jurisdiction over those crimes which are truly international.

The ILC Draft Statute provides that the court should have jurisdiction over: genocide; aggression; serious violations of the laws and customs applicable in armed conflict (war crimes); crimes against humanity; and treaty crimes annexed to the Statute. This annex includes international crimes designated as such by multilateral treaty, including: grave breaches of the 1949 Geneva Conventions on the Laws of War and Protocol I of 1977; drug trafficking; crimes against diplomats; and hijacking.

States have raised objections in relation to all the proposed offences. For example, a great deal of contention surrounds the definition of aggression.

Moreover, as a condition precedent to a case being brought, the Security Council must determine that an act of aggression has taken place. This has prompted a number of states to raise doubts as to the independence of the court from the political agenda of the Security Council.

Contention also surrounds the inclusion of treaty crimes. This is because such crimes fall foul of the principle of legality, in that they are not part of customary international law.

At present it seems likely that aggression and treaty crimes will have to be excluded and the court will be left with jurisdiction over the "core crimes" of genocide, crimes against hum-anity and war crimes.

The criminal jurisdiction of a state is one of the most jealously guarded aspects of sovereignty. States are reluctant to allow the international criminal court to exercise jurisdiction in the absence of consent. The draft statute gives states primary jurisdiction over international crimes and the initiation of prosecutions.

This deference to state sov-ereignty is in stark contrast to the ad hoc tribunals for Rwanda and the former Yug-oslavia. The Yugoslavian tribunal has concurrent juris diction with national courts over international crimes. Ultimately, however, they have primacy of jurisdiction and may require national criminal authorities to defer to their competence. This authority was used in relation to Dusan Tadic and stems, in part, from the tribunal having been established by binding resolution of the Security Council, acting under Chapter Seven of the United Nations Charter (UNC).

However, the ILC prefers the permanent court to act as a complement to national criminal system. The preamble to the Statute declares that "[the court] is intended to be complementary to national criminal justice systems in cases where such trial procedures may not be available or may be ineffective".

A number of states have expressed the opinion that this provision does not go far enough, and that express provision should be made for national systems to have primacy. It remains to be seen just how far an international court will be willing to look behind the veil of national criminal trials, to uncover what may, in effect, be sham prosecutions. What seems certain however, is that the adoption of this approach will render an International Criminal Court a court of last resort.

One of the cornerstones of any criminal justice system is the independence of the prosecutor. The jurisdiction of the court and the initiation of prosecutions are, however, subject to a complex system of state consent.

The draft statute grants to the court "inherent jurisdiction" only over genocide or where the Security Council refers a case, acting under Chapter Seven. This means that the court has authority to try individuals without the consent of the state in which the crime is alleged to have been committed, or the state in which the defendant is resident. In all other cases, the custodial state and the territorial state must be parties to the treaty establishing the court and must have made a declaration accepting the jurisdiction of the court in relation to the specific crime alleged.

The prosecution cannot initiate investigations by its own motion. It must wait until a state makes a complaint or a reference is made by the Security Council, acting under Chapter Seven. States are likely to be conscious of diplomatic relations, and unwilling to make complaints regarding human rights abuses in other states.

Proposals limiting the independence of the prosecutor have been made by the American delegation, where the five permanent members of the Security Council (the US, China, Russia, France and the UK) would have an effective veto over any prosecutions at the court. This is extremely undesirable for any independence of the court and has received heavy criticism from Britain and other European states.

The consensual approach, adopted by the ILC, reflects the manner in which states currently "sign-up" to bilateral and multilateral treaties. While such agreements may be effective in controlling specific inter-state disputes and fac ilitating greater inter-state co-operation. For example, in extradition, they should not be applied to the international court. The jurisdiction of the permanent court will include only those crimes which are truly international in character, and thus apply across borders irrespective of whether a state agrees to be bound by them or not. It is essential that states should not be able to pick and choose their criminal liability. In this regard, there appears to be a growing consensus among states that the court should have inherent jurisdiction over the "core crimes".

Even where the court does have jurisdiction and consent has been given to a prosecution, before any trials can take place it must secure the attendance of the defendant. Where a particular case involves a treaty crime, the statute obliges states to extradite or try defendants. In cases involving non-treaty crimes, the court relies upon states to comply with their duty to arrest and transfer the accused to the court. This is a necessary feature of an international criminal system that does not have an effective police force acting on behalf of the prosecutors office in the tracking down, detention and surrender of those indicted.

It remains to be seen how forthcoming states will be in co-operating with the court. Certainly the experience of the Yugoslavian Tribunal has shown states to be extremely reluctant to surrender their nationals for trial.

In order to avoid a deadlock in proceedings, where the state is unwilling or unable to comply with a request for the arrest and surrender of a defendant, the draft statute provides that special evidential hearings may take place. These are public, pre-trial hearings, the purpose of which is to determine whether a prima facie case exists. Where such a determination is made, the court may issue and publish an arrest warrant, placing all states party to the statute under an obligation to arrest and surrender the accused.

The Yugoslavian tribunal has conducted evidential hearings of this kind in respect of a number of defendants, including the Bosnian Serb leader Radovan Karadzic and General Ratko Mladic.

The rationale behind the rule is to allow victims and witnesses their "day in court", and to provide a public record of the atrocities which have taken place. In the event that the defendant is eventually transferred to the court, that record is admissible in any subsequent proceedings.

It seems likely that the ILC will successfully negotiate a path to an acceptable draft statute for the permanent court. The court is not likely to be established until the beginning of the next century.

A robust stance must be taken against the erosion of prosecutorial independence and the subjugation of the court to national jurisdictions.

In striving to achieve a settlement, it is important that the court be independent of political constraint and able to conduct both effective and fair criminal prosecutions.