Creating an international criminal court

By Fergus Watt and Peggy Teagle | 1996-03-01 12:00:00

Last year, when the United Nations marked its fiftieth anniversary, there were widespread expectations that the occasion would offer an opportunity not only to celebrate the U.N.'s accomplishments, but also to reform the organization. The post-Cold War world has assigned the U.N. a growing number of responsibilities. The need to modernize the institution is now widely acknowledged.

And so the year witnessed a flurry of reports, proposals and statements directed to answering Secretary-General Boutros-Ghali's call for a reformed and revitalized United Nations system which can meet the challenges of the next millennium. There was a major conference of diplomats and NGOs in San Francisco 50 years after the signing of the Charter. And in October, U.N. head-quarters in New York hosted the largest ever international meeting of Heads of State. This led to a traffic gridlock in Manhattan, a few sound bites for the evening news, but little more.

Much of the reform debate focused on ways to repair the U.N.'s current machinery, such as: improving its capacity to manage a growing roster of peace operations; reforming the composition and procedures of the Security Council; and remedying the U.N.'s shortage of funds. There was little progress on concrete measures for U.N. reform.

Not wanting to lose the momentum, the General Assembly voted to create a high-level body on reforming, revitalizing and strengthening the United Nations, which is to report by September, 1996. Perhaps last year's most important diplomatic breakthrough was directed at creating a new body: an International Criminal Court (ICC). In recent years lawyers and diplomats at the U.N.'s International Law Commission, a working group of the General Assembly, and the Assembly's Sixth (Legal) Committee have made progress negotiating a draft statute for a Criminal Court. Those championing the creation of an ICC (including Canada, Italy, Australia, The Netherlands and a growing constituency of NGOs) obtained agreement on a resolution to create a treaty-negotiating process.

A Treaty In 1997?

A preparatory conference this year is expected to set the stage for diplomatic meetings in 1997 to culminate in a treaty creating the Court. The key step, taken last November, was to agree to move the issue out of the labyrinth of U.N. Committees to a separate treaty-making process. This suggests that there has been enough progress to justify expectations among U.N. diplomats that a treaty will create a Court with the support of a significant number of states.

The idea of a criminal court is not new. Many hoped such a court would be established following the Nuremberg trials at the end of World War II. While a body of law has existed in the Geneva Conventions and Nuremberg and Tokyo precedents, the superpowers were reluctant during the Cold War to move ahead and develop international criminal law. Today, when war breaks out and the United Nations takes action to restore international peace and security, there are three options at its disposal: diplomacy, economic sanctions and, if these fail, the use of military force. Often U.N. sanctions do not have the desired effect.

Increasingly the question is being asked: Why do we punish the citizens of a nation for the crimes of its leaders? Many of the worst offenses committed by governments, armies and terrorists--for instance, genocide, aggression, rape and targeting of civilians in times of war--are already illegal under international law. But these laws are often contravened with impunity, in part because the world community has rarely shown the will to go after violators. Creation of an International Criminal Court (ICC) would help change this situation by making individuals, including national leaders, accountable for violations of some of the worst offences under international law. Unlike the International Court of Justice in The Hague, which exists to hear cases between states, an International Criminal Court would try individuals for violations of the law.

An International Criminal Court would consist of a Presidency, Trial and Appeals Chambers, and a Registry or secretariat. There would also be an independent organ of the Court, a Procuracy, responsible for the investigation of complaints, headed by a Prosecutor with two deputies and staff. Like the judges of the Court, the Prosecutor and deputies would be elected by an absolute majority of States party to the Court, by secret ballot. Eighteen Judges would be drawn from a pool of nominees (each state being able to propose the names of two nominees). They would be selected for a nine-year non-renewable term on the basis of their criminal trial experience and knowledge of international law. In electing judges, states would be asked to keep in mind the need to represent on the Court all the principal legal systems of the world. The Judges would elect from among their number a President, two Vice-Presidents and two alternate Vice Presidents. The Registrar would head the Court Secretariat and would be elected by the judges at the proposal of the Presidency. The Registrar would hold office for five years and be eligible for re-election.

What's An International Crime?

Which crimes would fall within the jurisdiction of the Court? According to the latest Draft Statute for an ICC, the Court would have jurisdiction in cases involving: the crime of genocide; the crime of aggression; serious violations of the laws and customs applicable in armed conflict; and crimes against humanity. These crimes are defined in treaties already in existence. Some other ´less serious' international crimes, presently listed in an annex to the Draft Statute, may or may not be included in the Statute; these include torture, terrorism and drug trafficking.

The crime of aggression, which is now in the Draft Statute, raises a number of difficult issues and may not be included in the final treaty. The U.N. definition of aggression (based on a 1974 General Assembly resolution) is vague and inadequate. More importantly, the U.N. Security Council, which is mandated under the Charter to maintain international peace and security, has the primary responsibility to make determinations of acts of aggression. Under the present draft of the ICC Statute, a complaint of aggression which is investigated by the ICC may not be brought to Court, unless the Security Council has determined that a State has committed the act of aggression which is the subject of the complaint. This is one of the defects of the Draft Statute, be cause it in effect allows the permanent members of the Security Council to use their veto to prevent action by the Criminal Court related to aggression.

Other parts of the Draft Statute defining the relationship between the Court and the Security Council are also contentious. For example, under the U.N. Charter, Security Council resolutions are binding on all States. This means that parts of the ICC Draft Statute which allow the Security Council to refer cases to an International Criminal Court would effectively extend the Court's jurisdiction to States which haven't become party to the Statute. Provisions of the Draft Statute relating to acceptance of the jurisdiction of the Court are, like those of the International Court of Justice in The Hague, notoriously weak. States can accept the jurisdiction of the Court generally, as outlined in the Statute; or they can lodge with the Court Registrar a declaration specifying which of the crimes will be applicable to its nationals. The crime of genocide is the exception to this rule; all States party to the Draft Statute must be bound by provisions for punishing those responsible for genocide.)

Furthermore, states can withdraw their acceptance of the jurisdiction of the Court by giving six months notice. Withdrawal would not affect proceedings already underway. This optional nature of acceptance of the Court's jurisdiction will allow some nations to avoid prosecution of their nationals, thereby undermining the consistency of the application of international law.

Notwithstanding these defects in the Draft Statute, the process now underway to create an International Criminal Court is a major step forward. The existence of such a Court would improve the U.N.'s collective security system by providing the U.N. with an important new mechanism to deter and punish violations of international law. A permanent court would build on the success of the present ad hoc courts for prosecuting war crimes in the Former Yugoslavia and Rwanda. Rather than respond to acts of genocide in an ad hoc manner, a permanent ICC would allow the U.N.'s application of humanitarian law to become more reliable.

A permanent court would not only allow for greater efficiency and cost savings. It would also serve as a deterrent to other potential criminals. It is the ability to deter crime, more than the capacity to punish it after the fact, that is the hall-mark of an effective legal order. Furthermore, creation of an ICC helps erode the outdated notion that the world is little more than a collection of nation states. It represents an important step, conceptually, legally, and politically, from state-centered thinking to a more civilized framework in which the individual has rights and responsibilities under international law.

Fergus Watt is Executive Director of the World Federalists of Canada. Peggy Teagle is Coordinator of the Canadian Network for an International Criminal Court (CNICC). To join the CNICC and receive periodic updates on international developments relating to negotiations to create an International Criminal Court, send $30 and your name and address to CNICC, 207-145 Spruce St. Ottawa, Ont K1R 6P1)