Tribunal may pave way to international criminal court

International War Crimes Tribunal

By Scott Robarts and Fergus Watt

The United Nations has been trying to play a larger role in the maintenance of international peace and security. When the U.N. Security Council intervenes to restore peace or prevent an outbreak of hostilities, it has three means to modify the behavior of a nation: diplomacy, sanctions and, as a last resort, military enforcement.

As things stand today, the international community often takes measures that indiscriminately harm all the people in the offending state, though only a handful of politicians are responsible for the crisis. Take Haiti, for example. The current U.N. sanctions have brought shortages of food and fuel to the people of that country, further impoverishing the poorest nation in the Western hemisphere. During the Gulf War, enforcement of Security Council resolutions against Iraq left over 200,000 innocent Iraqis dead, while Saddam Hussein remained in power.

Often an entire nation pays the price for the criminal activities of its leaders. The U.N. needs a more discriminating touch. International law, unlike domestic law, is made by and applied to nationstates, not people, by the existing International Court of Justice in the Hague.

The proposal for an International Criminal Court (ICC), currently under debate at the U.N., would go a long way to changing this situation. Last fall the International Law Commission presented a draft statute for creating an ICC to the U.N. General Assembly. Some changes were suggested, and the Law Commission is expected to present a revised draft statute later this year.

In the meantime, the United Nations Security Council has voted to set up an International War Crimes Tribunal for the former Yugoslavia to prosecute violations of international humanitarian law being committed in Bosnia and Croatia. Canadian jurist Jules Dechenes is one of 11 judges who have been appointed to the tribunal. For over two years a War Crimes Commission based in Geneva has been collecting evidence of war crimes committed in the former Yugoslavia.

Although these are steps in the right direction, reports that the international community may reduce or cut off funding for the War Crimes Commission have once again fuelled suspicions that the tribunal is being used as a bargaining chip in negotiations with the warring parties in the former Yugoslavia. It is hoped that these set-backs are only temporary and that the tribunal carries out its mandate with some success, paving the way for eventual creation ofan ICC.

There are strong advantages to having a permanent International Criminal Court, rather than an ad hoc creation like the War Crimes Tribunal for the former Yugoslavia. A permanent ICC would reduce the possibility that it could be politically influenced or used selectively as a tool for retribution by more powerful nations. A permanent court in existence before a crime is committed would be more of a deterrent than an ad hoc tribunal set up after the fact. This deterrent function would be further reinforced if the court had an established track record of enforcing the law. Finally, it is expected that a permanent International Criminal Court would have wider jurisdiction than an ad hoc tribunal. It would have the power to enforce its decisions upon all the countries that have signed on to the treaty establishing the court.

Many of the offences currently being committed by governments, military forces and terrorists (for instance, genocide, aggression, and targeting civilians in a war) are already illegal under international law. But often these laws are violated with impunity, mainly because no effective means exist for their enforcement against the political and military leaders involved. An international criminal court would have the power to try and convict individuals for their crimes.

Fergus Watt is Executive Director and Scott Roberts is an Ottawa member of World Federalists of Canada.

Peace Magazine Jul-Aug 1994

Peace Magazine Jul-Aug 1994, page 21. Some rights reserved.

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