American hostilities are not confined to Saddam Hussein – the emerging International Criminal Court has been attacked by the US administration. So just how effective will it be without the Yanks? asks Jon Robins

Sometimes it is the people who do not come that reveal as much about a gathering as those that do, and so it was this month at the signing-in of the first 18 judges of the International Criminal Court (ICC) at The Hague. The pointed absence of the US Ambassador to the Netherlands Clifford Sobel spoke volumes about the Bush administration's continuing hostility to the new court. It also delivered an unsubtle diplomatic snub to the assembled international law community, including UN Secretary General Kofi Annan, who did make the transatlantic journey and called the new court “the embodiment of our collective conscience”.

So did the conspicuous absence darken the mood at The Hague? Absolutely not, replies Nicholas Stewart QC, former chair of the Bar Human Rights Committee and one of 500 guests who attended the grand ceremony in the 14th century hall of the Dutch parliament. “On the one hand, the Iraq situation made everyone think we haven't solved all the problems of the world, but then again, it demonstrates that this court was a fantastic idea and it's a huge advance to have set it up,” he says. “Human beings have a remarkable ability to just enjoy the occasion, and anyway, this was a big day.”

Even though the judges have taken the oath to perform their duties “honourably, faithfully, impartially and conscientiously”, the court is still a long way from being operational. For a start, it does not yet have a permanent home and will in the meantime be reliant on local Dutch courts. But even more crucially, it lacks a chief prosecutor, and given the tortuous judicial selection process (which took 33 rounds of voting), that will be no easy task. Patience is already wearing thin and Bill Rammell, Parliamentary Under-Secretary of State at the Foreign Office, acknowledged that the UK Government was “somewhat frustrated” that progress was stalled awaiting the appointment.

One novel solution that is being floated, perhaps not entirely seriously, is that the UN brings in a US judge for the top post. “Americans are terrific prosecutors – they have a very fine tradition,” Geoffrey Robertson QC, the newly-appointed president of the International War Crimes Court for Sierra Leone, told The New York Times recently. “Having a top-flight American would clearly help reconcile Washington to the court.”

It was this idea that was doing the rounds at The Hague this month. “It was an entertainingly mischievous idea, but I don't think it was ever a serious runner,” Stewart says. In fact, some commentators believe that the idea of a prosecutor coming from a non-signatory is not possible under the ICC statute.

Nevertheless, the ICC will not only have to learn to survive without the US but will also have to face up to increasingly aggressive attempts to undermine the court. While Bill Clinton's government played a leading role in the drafting of the 1998 Rome Treaty that led to the court's establishment, his successor has 'unsigned' that document, describing the ICC as a “rogue court” and a “political menace” to its own troops and politicians.

“By actively working against the ICC, our leaders are turning a deaf ear to American support for international justice and denying the American moral heritage of leading the global community in bringing justice to victims of mass atrocities,” argues Heather Hamilton of the Washington Working Group on the ICC, which represents 30 US non-governmental organisations (NGOs).

The US Congress passed the American Servicemembers' Protection Act (ASPA) last year (otherwise known as the 'Hague Invasion Act'), which would allow the US to send in its troops to the Netherlands to liberate any of its own, should they be detained. In protest, peace campaigners dug 'symbolic' bunkers as an ironic gesture to the apparent US threat.

Across the world US diplomats have been hard at work in their efforts to frustrate the work of the ICC and have been piling the pressure on governments to obtain 'bilateral immunity agreements', which exempt US citizens from the court's jurisdiction.

More than 20 states have signed such agreements, invalidating their obligations to the court, including eight that are party to the treaty. However, the 15 member states of the EU and the overwhelming majority of other states have refused to sign the agreements. US officials are claiming the ASPA will cut off military assistance to states that have not signed an agreement by 1 July 2003.

The same law, however, allows the Bush administration to waive this prohibition on grounds of “national interest”. According to Richard Dicker of international NGO Human Rights Watch, this is “double dealing”. “They're pointing to the part of the ASPA that makes withdrawal of military assistance look threatening and real,” he continues, “but they conveniently ignore the law's provisions empowering the administration to continue giving assistance.”

But what does an ICC without the US amount to? “It will function perfectly well without them,” reckons Professor Phillipe Sands, a member of Matrix Chambers and director of the Centre of International Courts and Tribunals at University College London. “There are lots of other international courts and tribunals that the US has chosen to stay away from and they all function extremely well.”

Peter Carter QC, the chair of the Bar Human Rights Committee, says: “It would obviously be better and stronger if the Americans did participate, but the fiercely competitive process for appointing judges demonstrates that all 80 states are taking this court very seriously and are absolutely determined to make it work.” But Hamilton points out that Slobodan Milosevic would never have appeared before a tribunal in The Hague without the military and diplomatic muscle of the US leaning on Balkan countries to hand over their war criminals. “I don't think that the ICC will be hollow or symbolic, it will just be weakened,” she says.

But there are more immediate problems facing the fledgling court, including finding a suitable candidate to bring such charges as genocide, war crimes or crimes against humanity. Kofi Annan said this month that the experience of the war crimes in Rwanda and Yugoslavia had shown that “the decisions and public statements of the prosecutor will do more than anything else to establish the reputation of the court, especially in the first phases of the work”.

Mark Ellis, the International Bar Association's (IBA) chief executive, says: “The type of person they're looking for will have to be an effective prosecutor with both a strong criminal law and international law experience, as well as being someone who can work 20 hours a day, manage a large staff and deal with all the UN politics. We're talking about a very small pool of people here.”

But who? Many of the likely candidates have ruled themselves out, including the two obvious contenders: Richard Goldstone does not want to leave South Africa, and Carla del Ponte, the Swiss-born lawyer who is currently prosecuting Milosevic, wants to see that trial through. It appears that no one wants to put their head above the parapet, and international law commentators are mindful of the experience of the Yugoslav tribunal, where it took almost a year to find a judge. The ICC has said that it will be looking to make a decision by the end of next month.

Carter at the Bar Human Rights Committee believes the appointee could well be a surprise package. “Richard Goldstone wasn't particularly well known when he was appointed as prosecutor for Yugoslavia, and he was absolutely brilliant; and so it may be from someone not well known outside their own country,” he says.

As Ellis points out, the prosecutor is unlikely to be from any of the 18 countries where the new judges have come from, nor does he believe the judge would come from a country that has not ratified the statute. As if that was not difficult enough, it is understood that the appointment is so important that the signatory states will want to make a decision by consent.

In the meantime, the cases continue to pile up and, according to ICC staff, there are already 200 complaints awaiting the attentions of the court. There has been some speculation as to what prosecution would be an appropriate debut for the tribunal. According to a number of press reports, it is likely to be a complaint referred to the ICC by the Congo's government concerning the Movement for the Liberation of Congo and claims that activists have massacred and eaten civilians.

The IBA has called upon the ICC to tackle Robert Mugabe. Zimbabwe has not yet ratified the ICC statute, but according to the IBA, the ICC's investigation of his alleged crimes can still occur while awaiting the return of democracy and the rule of law in Zimbabwe.

“No single act would more accurately reflect the purpose and importance of the ICC than to have Mr Mugabe investigated by the new court,” says Ellis.

Flying the flag at the ICC: the UK judge
The UK's first openly gay judge in the High Court, Sir Adrian Fulford, will be the UK's representative at the newly-inaugurated International Criminal Court (ICC).
The 50-year-old silk has proved a popular choice with his peers. According to Peter Carter QC, chairman of the Bar Human Rights Committee, he is “an outstanding barrister. I wasn't aware at first that he wanted to be an ICC judge, but when his name was mentioned he seemed to be an absolutely ideal person for the job.”
Fulford is a member of 14 Tooks Court (chambers of Michael Mansfield QC) and is known for his work in mainstream criminal cases – mainly murder, fraud, drug and rape cases. He took silk in 1994, became a recorder two years later, and was appointed to the High Court earlier this year.
Professor Phillipe Sands of Matrix Chambers welcomes his appointment because he is not “part of the ICC mafia. He does not have a background in international law, but he has an excellent background in criminal law,” he reasons. “And he came through a selection process that is recognised as the most transparent one of the 89 states taking part.”
The 18 judges were voted for out of 44 potential candidates and in a complex process requiring 33 ballots. Philippe Kirsch, a French-Canadian lawyer and diplomat who chaired the preparatory commission for the ICC from 1999-2002, was chosen as their president. The other judges, comprising 11 men and seven women, included Maureen Clark (Ireland), who has served as a judge at the International Criminal Tribunal for the Former Yugoslavia, and Navanethem Pillay (South Africa), the first black woman to serve in her country's high court.
Fulford is believed to have spoken only once about his sexuality in an interview with the Gay Times, which appeared more than 10 years ago. He spoke out then, it is believed, because he did not want it to become an issue later on in his judicial career. In that article, he described what it was like to be shunned by colleagues. “What made me absolutely determined to be out, apart from the question of personal integrity, was watching other barristers who were desperate not to be revealed as being gay,” he said.