The recent failed attempt in the UK to prosecute Szymon Serafinowicz, an 86-year-old suspected Nazi war criminal, raised questions about whether money was being wasted on pursuing war criminals who were too old to stand trial and too close to death to receive any meaningful punishment.
Shortly after the abandonment of the trial, international lawyers and diplomats at the United Nations in New York met to consider similar issues relating to the Statute of Limitations for ageing war criminals. The aim was to prepare the ground for an international criminal court, which would stand as a permanent court to try all future war criminals and those who committed other crimes against humanity.
The concept of an international criminal court was born nearly 50 years ago, after the Nuremberg trials, but was put on ice during the Cold War. The initiative for the court re-emerged in 1989, when Trinidad and Tobago suggested drafting a statute on an International Criminal Court (ICC).
Between 1989 and 1996, the UN set up several groups to work on the court which resulted in the setting up of the Preparatory Committee (PrepCom) of States' representatives. Last week the PrepCom concluded the first discussions on the legal and structural basis on which the ICC will be established.
The PrepCom is a signal to non-governmental organisations (NGOs) like Amnesty International that there is, at last, enough momentum to get the court off the ground. “It looks now as if the momentum to establish the court is unstoppable,” says a legal adviser to Amnesty International. “Therefore governments must work to make sure it is just, fair and effective.”
Amnesty explains that the role of the proposed court will be to consider prospective crimes only and there are calls for there to be no Statute of Limitations for those indicted for genocide, other crimes against humanity and serious violations of human rights.
The ICC is being challenged on a number of grounds, including cost, administrative unworkability and the fact that it will be impossible to enforce crimes across jurisdictional borders if states do not consent.
Its aim will be to prosecute individuals rather than states and to hold them personally accountable for the crimes they commit. This would be an alternative to the present Nazi war crime-type trials in the UK and France, and the ad hoc tribunals currently being held in the former Yugoslavia and Rwanda.
“The establishment of the ICC will avoid wasting millions of dollars from ad hoc processes,” says Bill Pace, who heads the World Federalist Movement (WFM), an NGO which has been pressing for the court. “Even if the ICC succeeds at the criminal level only in the prevention of crimes, the savings pay for the court 16 times over.”
He adds: “The establishment of the court is likely to be not only the last major organisation to be established in this century but also the most important.”
The ICC PrepCom was divided into two working groups, with one concentrating on the definition of crimes and the other considering general principles of law. The first group has had greater success than the latter, which has had difficulty in synthesising different principles of international law.
The PrepCom is set to meet again for a further three weeks in August and again in December and in March/April 1998 to continue to work on these points. There are plans to hold a conference hosted by Italy in June 1998 as part of the process of establishing the court.
“National bodies have generally been supportive of the process but one of the major issues has been whether international conflicts will be included,” says Pace.
“No governments are stalling and there are more than 30 NGOs participating at the preparatory meetings,” he adds.
The effort to support the court has truly been global. While the committee is officially headed by Adrian Boss of the Netherlands, NGOs have drawn support worldwide.
“There have been representatives from Eastern Europe, Asia, Latin America and greater involvement from religious organisations than ever before,” says Pace. A collection of international organisations, ranging from women's rights groups to the World Federation of Mental Health, has established web sites and action groups to promote the court.
Despite the enthusiasm, those supporting the court face real challenges from states that are questioning the definitions of crimes and practical legal obstacles to applying the law. In August, the PrepCom will focus on the complex issues of political prosecutions and the role of the UN Security Council in supporting the court. Security members like the US and China may not want an ICC to challenge their sovereignty.
These practical problems, have not hindered the Prepcom from pushing ahead with its plans. “My attitude is that it is necessary to have a court,” explains Rein Mullerson, professor of international law at King's College, London. “These bodies will have to prosecute those who commit crimes now: for drugs, terrorism, and others who can be tried.”
Peter Michael Muller, a German lawyer and chair of the Human Rights Institute's liaison committee of the International Bar Association, believes that before a court can be set up to prosecute alleged criminals there has to be an international criminal code under which to try them. “It is a prerequisite to have an international criminal code as a functional legal basis, no court can function without it.” He points out that when the court is considering international crimes from Germany to Florida, it will be exercised by which law to apply.
However, Mullerson insists: “If one has to wait for an international criminal code, there can never be an international criminal court in the foreseeable future. In an ideal world it would be good, but it is impossible. You needn't have any code for war crimes.”
The ad hoc tribunals have incurred high costs and have not achieved substantial results. “Rwanda has not shown anything yet. Yugoslavia has done some useful work at least. I believe that even if it will be only partly effective this would contribute to the need for a permanent court,” says Mullerson.
The greatest concern voiced by academics and NGOs is that the momentum established behind setting up an ICC should not be lost. “We need to continue to raise awareness now that we are committed to a conference in 1998,” says Pace.
Sophie Linehan, a solicitor at Gordon Doctors & Walton, who became a member of the UK Solicitors Human Rights Group to promote the court after working with a number of refugees from the former Yugoslavia, Rwanda and Burundi, says: “When you hear all these atrocity stories, it is really frustrating that there is no mechanism that can deal with those ultimately responsible for them.
“It is encouraging that there are lawyers around the world who are taking an important issue and are prepared to get involved with it.”
If you are interesting in supporting the establishment of the ICC, contact Nicholas Hum-phrey at the Solicitors Human Rights Group Committee, 13 Woodbridge Street, London EC1R 0LL.