Update on the International Criminal Court

By Fergus Watt

On December 17, 1996, right after the election of the new secretary-general, the United Nations General Assembly adopted a resolution on agenda item 147: Establishment of an International Criminal Court (ICC).

The U.N. Resolution establishes a schedule for three more Preparatory Committee meetings in 1997, another in 1998, and a final diplomatic conference later in 1998. Some states (e.g. China and India) are not very enthusiastic about an ICC, and wanted to see negotiations drag on indefinitely. Establishing such a fixed schedule for 1997-98 was an important victory for the friends of the Court, the "group of like-minded" states in which Canada has a leadership role.

Creation of a permanent ICC would represent a tremendous advance for the international community, strengthening the U.N.'s capacity to maintain international peace and security. Whereas U.N. action often punishes an entire state for the crimes of a few, an ICC would hold individuals, including national political and military leaders, accountable for the worst violations under international law. In the aftermath of war, the criminal prosecution of leading individuals can help defuse animosities and mistrust among formerly warring communities or ethnic groups, and contribute to social and political healing and reconstruction.

The Court would also serve a preventive function by deterring potential criminals. It is the ability to deter crime, more than the capacity to punish it after the fact, that is the hallmark of an effective legal order. A permanent court would be an improvement on the two Ad Hoc Tribunals. The latter are limited geographically, to the former Yugoslavia and Rwanda, and in their capacity to actually apprehend persons indicted for war crimes. Rather than respond to acts of genocide in an ad hoc manner, a permanent court would facilitate a more consistent and reliable application of humanitarian law. It would also allow for greater efficiency and economy.

Furthermore, the existence of an ICC will help erode the outdated notion that the world is little more than a collection of nation states. It is an important step, conceptually and politically, from state-centred thinking to a framework in which the individual has rights and responsibilities under international law. There is no direct legal connection between the ICC and the Ad Hoc Tribunals. The Tribunals were created as a result of decisions by the U.N. Security Council and are limited in their jurisdiction. The International Criminal Court, on the other hand, would be created by treaty and open to participation by all states. However, there is an obvious political connection between the two: Should the Tribunals prove effective, they will demonstrate the value of a permanent ICC. At a meeting last October, Justice Richard Goldstone, former Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda, told a meeting of the Canadian Network for an International Criminal Court (CNICC), "The success of the two ad hoc tribunals is vital to the establishment of a permanent criminal court. All the staff in The Hague and Kigali, in doing our work for the tribunals, feel that added responsibility, that the world is judging how an International Criminal Court can work."

The principle that individuals can be held accountable for violations of international law, regardless of their rank or political position, dates at least back to discussions which led to the 1919 Paris Peace Treaty following World War I. However, it was not until the Nuremberg and Tokyo War Crimes Tribunals after the end of World War II that individuals were actually prosecuted for violations of international humanitarian law. Shortly after the U.N. was founded, one of its bodies, the International Law Commission (ILC), was asked to codify the Nuremberg principles and to prepare a Draft Statute to create an international criminal court. The ILC reported back in 1950, but a lack of consensus prevented progress during the Cold War years. In 1989 Trinidad and Tobago reintroduced the idea in the General Assembly. This time, the end of the Cold War and the outbreak of violence in the former Yugoslavia assured broad international interest in the idea. The ILC formulated a Draft Statute, the final version of which was presented to the Sixth Committee of the General Assembly in the autumn of 1994. A Working Group of the General Assembly discussed the Draft Statute in 1995, and in 1996 the first two Preparatory Committee Meetings on the Establishment of an International Criminal Court (Prep Coms) were held.

The recent U.N. decision to adopt a progressive and ambitious schedule for 1997-98 opens a crucial and possibly difficult phase in negotiations. Considerable differences remain on key issues. Canada will be central to the bargaining and compromise which forms an inevitable part of the negotiating process. In Canada, the CNICC includes about 150 organizations and individuals that support the creation of a just and effective ICC. The Canadian Network organizes regular meetings with Canadian officials, publishes an ICC Update newsletter and is also part of an international NGO effort, the New York-based Coalition for an International Criminal Court. NGOs have identified a number of issues which must be resolved in the course of upcoming negotiations. Some of these are summarized below.

Jurisdiction of the Court

The present Draft Statute for an International Criminal Court includes the following as "core crimes" under the Court's jurisdiction: genocide, aggression, violations of the laws and customs of armed conflict, and crimes against humanity. But the Statute is drafted to allow nations to choose the jurisdiction of the Court. States should not be permitted to issue declarations enabling them to opt out of parts of the Court's jurisdiction. The treaty should bind them to the ICC's Statute in all cases of crimes committed by their nationals. As presently drafted, this is the case only with regard to genocide.

The inclusion of the crime of aggression is a defining issue for some NGOs. Although aggression was prosecuted at Nuremburg and is still in the present Draft Statute, its eventual inclusion in the jurisdiction of the Court is unlikely, owing to opposition from a number of powerful states. Such states see aggression as a "political crime" which should be dealt with solely by the U.N. Security Council. Most NGOs disagree. While the body of law defining aggression (including the Nuremburg precedents and a 1974 General Assembly resolution) may need further elaboration, this would not be difficult if there existed the political will to do so.

The debate over whether to include aggression reveals the limits of the political will to develop a criminal jurisdiction within international law. A minority of states argue for the inclusion of other "treaty crimes," such as unlawful seizure of aircraft, apartheid, drug trafficking, international hostage taking, and endangering the safety of U.N. personnel. But the majority, wary of extending the already difficult negotiations, is opposed to including these crimes in the Court's Statute. The international community is not prepared at this juncture in history to establish an ICC which could help deter acts of aggression and curtail war; it seeks only to limit the worst excesses of war.

Once the ICC is established and has proved its usefulness, there will be a need for subsequent negotiations to amend its Statute and broaden the Court's jurisdiction. An amending formula is another issue to be settled between now and 1998.

The ICC and the Security Council

The U.N. Security Council should not be able to influence the work of the Court without just cause. As drafted, the ICC Statute prevents the Court from commencing a prosecution "arising from a situation which is being dealt with by the Security Council as a threat to or breach of the peace, or an act of aggression under Chapter VII of the U.N. Charter, unless the Security Council otherwise decides." The Security Council could prevent Court action simply by placing a situation on its agenda. This would give the permanent members of the Security Council the ability to shield their nationals from prosecution. A two-tier justice system would exacerbate the already inequitable power relationships at the U.N. The judicial functions of the Court should not be subordinated to a political body in this way. Canadian officials, not wanting to create a Court which would exercise jurisdiction only over the weakest states, have stated that they will oppose this aspect of the current Draft Statute.

Independent Prosecutor

As the Statute now stands, the Prosecutor would initiate investigations only after receiving a complaint from a state or a referral from the Security Council. Many delegations at the recent Prep Coms argued that the Prosecutor should also be empowered to initiate investigations and prosecutions on the basis of information provided by individuals, such as citizens organizations, and relatives of victims.

Funding

In order to secure reliable funding, the expenses of the Court should be paid from the regular budget of the United Nations.

The final Statute will be drawn from the rules and procedures of the world's main legal systems. There are questions to be resolved regarding rules of evidence, the triggering of the Court's investigations, the rights of suspects, defendants and witnesses, penalties and restitution, and the relationship between national and international jurisdictions.

The development of an ICC is not only an important practical measure to buttress the U.N.'s capacity to maintain peace and security. The evolution of a criminal jurisdiction, the application of world law to individuals, is a process in which all world citizens have a stake. An International Criminal Court represents a significant step in humanity's quest to bring international relations more fully under the rule of law. It is how we can civilize international relations, how the 'international community' can become a real community. Citizen groups have made important contributions in the ICC negotiations thus far. Public pressure will be even more important in the crucial months ahead to ensure a just and effective Court.

For those with Internet access, the Coalition for an International Criminal Court maintains a homepage at: http//www.igc.apc.org. An E-mail conference can be found at un.icc and is a useful listing of NGO and government documents. In Canada, individuals can also join the Canadian Network for an International Criminal Court (CNICC) and receive periodic mailings, including the ICC Update newsletter. To join, write to CNICC, 207- 145 Spruce St. Ottawa K1R 6P1. Please include a donation of $30 payable to CNICC.

Peace Magazine Mar-Apr 1997

Peace Magazine Mar-Apr 1997, page 24. Some rights reserved.

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