The International Criminal Court

By Justice Paul Reinhardt

In July 1998 the "Rome Statute," providing the legislation for the International Criminal Court (ICC), a permanent court for the trial of war crimes, was approved by 120 countries. The ICC will be established when 60 countries have ratified. As of the October 2, 2000, 21 countries had completed the ratification process, and many more had signed commitments to ratify. Canada is among the countries that have completed ratification and have undertaken leadership roles in support of the Rome Treaty. Justice Reinhardt served in Italy as a delegate to the ICC for the Unitarian Church. After a talk to the Willowdale Unitarian Church he answered these questions.

Q: What is the purpose of the International Criminal Court?

REINHARDT: Its purpose will be to investigate and bring to justice individuals who commit the most serious violations of the international humanitarian law, namely genocide, war crimes, crimes against humanity, and once defined, aggression.

Q: Where does the ICC derive its authority, and what will be its jurisdiction?

REINHARDT: It derives its authority from legislation approved by the General Assembly of the United Nations. The intent is that its jurisdiction will be world-wide. The Nuremberg and Tokyo trials after World War II were established by the victorious Allied nations, but the idea of the ICC is that it is not just a court imposed by winners on losers - "winners" should be equal to "losers."

Q: Can you give us some historical background on courts for war crimes?

REINHARDT: Proposals to create a permanent international criminal court predate the United Nations. The Treaty of Versailles, for example, provided for prosecution of Kaiser Wilhelm II by an international tribunal, but the Kaiser escaped to asylum in the Netherlands and was never prosecuted. The United Nations produced a Draft Statute for an International Criminal Court in the early 1950s. In this, it drew on the experiences of the postwar military tribunals. There was little further progress until the 1990s. At that time, work on the Draft Statute was not resumed. Instead, the Security Council passed resolutions establishing international tribunals for violations of international humanitarian law committed in Yugoslavia (tribunal set up in 1993) and in Rwanda (set up in 1994).

Q: How does the ICC differ from the Rwandan and Yugoslavian tribunals?

REINHARDT: Those tribunals were created by U.N. Security Council resolution, and could be dissolved by the Security Council. Also, they are time-limited. The vision is that they will eventually be replaced by a permanent ICC. The International Criminal Court will have jurisdiction throughout the world, and will not be subject to Security Council veto. Therefore, permanent members of the Security Council (such as Russia, China, and the U.S.) will not be able to shield their citizens from prosecution.

Q: Who will be held responsible for war crimes?

REINHARDT: The ICC will see crimes from the vantage point of the victim, and will hold an individual leader or individual soldier responsible.

Q: Does that mean that Milosevic, for example, would be held responsible as an individual for alleged war crimes?

REINHARDT: Under personal responsibility for action, Milosevic would in theory be liable to prosecution. However, in this case the existing criminal court is the ICTY, or International Criminal Tribunal for Yugoslavia.

Q: What relationship would the ICC have to national courts?

REINHARDT: The Court will complement national courts. It will only act when national systems are unable or unwilling to investigate and prosecute such crimes. In Chile and General Pinochet the ICC would not have a role, because the Chilean government has proceeded with charges against General Pinochet.

Q: What if a government is the instigator of crimes against humanity?

REINHARDT: If a government is the perpetrator of crimes, that government is not likely to cooperate with the ICC. The Court may assert jurisdiction: worldwide legal jurisdiction is established once 60 countries have ratified the Rome Statute. But then the ICC has to figure out how to enforce jurisdiction. If a government alleged guilty of war crimes is overthrown, the new government would have responsibility either for proceeding with charges against individuals through its national justice system or for turning individuals over to the ICC.

Q: What distinguishes the ICC from the International Court of Justice (ICJ)?

REINHARDT: The International Court of Justice in the Hague can only hear disputes between states, when those states agree to let the ICJ hear the dispute. The ICC will have the capacity to indict individuals, whether or not those individuals agree to the proceeding.

Q: Apart from ratification, is anything else necessary for implementation of the Statute?

REINHARDT: Each state that wishes to ratify the Statute of Rome must also pass domestic legislation harmonizing local law with the Statute. Scholars at the University of Teramo, Italy, are taking the lead in assisting countries in the drafting of this legislation. Implementation of the Statute also involves approval of Rules of Procedure and the text of The Elements of Crime, which will guide the new court in its deliberations. These documents were approved at the Preparatory Commission, chaired by Canadian Philippe Kirsch in the session ending June 30, 2000.

Q: Is there a "criminal code" for it?

REINHARDT: A code is inherent in the statute for the ICC, and in Charter statements by the United Nations.

Q: If 120 countries voted for the Rome treaty in 1998, then why isn't the ICC in existence yet?

REINHARDT: There is a difference between "voting for" and "ratification." The requirement is that 60 countries must ratify before the Court is established. Legislation exists, and a staff is at work. Many countries have promised to ratify, in addition to those 21 countries that have already completed the process and deposited the instrument of ratification with Secretary-General Kofi Annan. Opposition by the U.S. is a problem for the ICC in becoming established.

Q: What has been the U.S. involvement?

REINHARDT: At least since Nuremberg, the stated U.S. foreign policy goal has been the establishment of some form of international tribunal to deal with war crimes and crimes against humanity. The U.S. supported the Security Council resolutions establishing temporary courts in Yugoslavia and Rwanda. U.S. citizens have played central leadership roles in many of the non-governmental organizations that worked for the establishment of the ICC. However, when the Statute of Rome was passed on July 17, 1998, the United States was one of seven countries voting "No."

Since then, the United States has continued to attend the U.N. preparatory meetings, discussing the minute details of the draft Rules and Elements of Crime. The delegates from other countries and the NGOs have welcomed the U.S. participation and input. But the rapidly approaching possibility of the successful ratification of the new ICC by the rest of the world community has produced many efforts by the United States to craft provisions that would have the result of shielding U.S. citizens from prosecution by the court. None of these efforts has received the support of more than a few countries. The United States has now set a deadline of December 31, 2000 for acceptance by the rest of the world to U.S. proposals to exempt Americans from the jurisdiction of the court. There is a distinction between individual citizens and the government: many individual U.S. citizens have done key things for the ICC.

Q: Why is the United States opposed?

REINHARDT: The U.S. opposition is based on the fear that U.S. troops and citizens might find themselves subject to prosecution once the court is established. The U.S. considers that it has a special position in the world. It fears anything that might threaten its freedom of action, and dislikes the inclusion of aggression as a crime. Under ICC legislation, even the President of the United States would not be exempt from indictment for war crimes.

Q: You mentioned non-governmental organizations supporting the ICC. Can you tell us more about that? What is the Coalition for an International Criminal Court (CICC)?

REINHARDT: It is a network of over 1000 civil society organizations all over the world, working toward the establishment of a permanent ICC.The steering committee includes Amnesty International, Human Rights Watch, The International Commission of Jurists, Lawyers' Committee for Human Rights, No Peace Without Justice, The Women's Caucus for Gender Justice, and the World Federalist Movement. A freestanding International Criminal Court has been a dream of peace and human rights activists at least since the founding of the U.N. in 1945 and it is on the verge of becoming a reality.

Q: What has been Canada's role?

REINHARDT: Canada has had an important diplomatic role in the development of the international rule of law through the United Nations. Canadians such as Lester Pearson, Maurice Strong, Stephen Lewis and Lloyd Axworthy have all played leadership roles at the U.N.. Justices Louise Arbour and Jules Deschenes have served as a prosecutor and judge respectively in Yugoslavia and Rwanda. Canadians have also taken leadership roles in creating the ICC. At the U.N. Conference for the ICC in Rome in 1998, Canadian diplomat Philippe Kirsch chaired the proceedings. At the outset, Europe, the Commonwealth, and many African and South American countries and some Middle Eastern countries were in favor. Russia, China, and the U.S., three of the permanent members of the Security Council, along with a few others, were seen to be trying to slow the momentum. When the Conference began, no one thought a final statute was possible. Kirsch showed great skill in achieving that end and because of the high regard in which he is held by the other delegations, he has continued to chair all subsequent meetings of the Commission. He has successfully chaired the sessions resulting in the approval of the Elements of Crime and Rules of Procedure for the Court. All of the legal text for the ICC has been written - an amazing feat of international diplomacy! To find out more, visit www.iccnow.org and www. un.org/law/icc/prepcomm/prepfra.htm.

Peace Magazine Jan-Mar 2001

Peace Magazine Jan-Mar 2001, page 21. Some rights reserved.

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