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World: Permanent Criminal Court To Be Created This Summer

  • Kitty McKinsey

The Hague, 13 May 1998 (RFE/RL) -- Next month on June 15, delegates from more than 100 countries will gather in Rome for a month-long conference intended to produce a statute setting up a permanent International Criminal Court. For the first time ever, victims of war crimes and crimes against humanity will have an institution to turn to for redress.

Such a court has long been a dream. As one of its first acts, the United Nations set up an international law commission to explore the possibility of a permanent criminal court. In the early 1950s, two draft proposals were prepared, but plans languished until 1989, when the idea was raised again by the tiny island nation of Trinidad and Tobago. The UN asked the international law commission to resume its work.

"This has been the bloodiest, most war-ridden century in all history," says William Pace, head of the NGO's Coalition for an International Criminal Court. "It would be an enormous positive note for the world community at the end of the century if the last major international organization established were a world tribunal on international criminal justice."

Pace says a permanent criminal court would be a "major new peace institution" that would help the world community deal with conflict prevention, conflict resolution, long-term reconciliation and peace enforcement. Pace says it would help deter future crimes, especially future genocides.

The U.S. Ambassador for War Crimes Issues, David Scheffer, recently summed up the aim of an International Criminal Court: "Countries should bring to justice those who commit genocide, widespread or systematic crimes against humanity, and large-scale commission of war crimes, or turn them over to someone who will, such as an impartial and effective international court."

Although an international court would be intended to complement national courts, many argue that by the time law and order breaks down into these types of crimes, national courts are no longer able to cope, and it is time for an international body to step in.

It is clear that some type of permanent criminal court will emerge from the Rome conference. What is not yet clear is whether it will be an effective tool to prevent and punish atrocities.

The draft statute already has some 1,700 points of disagreement that must be solved. And some of the world powers, like the United States and France, have advocated measures that would hobble the court and make it less effective than its advocates would like.

Justice Louise Arbour, chief prosecutor for both the UN ad hoc tribunals, for ex-Yugoslavia and Rwanda, says it is disappointing to see that some states that are in a position of leadership are not living up to the challenge of developing an institution that, as she puts it, "would be good enough for them."

"In fact," she adds, "the whole attitude seems to be to develop an institution that would be very appropriate to judge others, but trying to stay completely immune from its reach."

The U.S., in particular, is deeply divided on the issue, with President Bill Clinton and Secretary of State Madeleine Albright supporting an effective court, but the Pentagon opposed. The Pentagon recently painted an alarming picture of young soldiers being brought before a politically-motivated court.

The Pentagon and a number of conservative commentators in the U.S. have expressed fears that U.S. soldiers around the world would be subjected to frivolous judicial harassment by its enemies' bringing cases to the court.

"A court prosecuting criminals such as Carlos the Jackal and Pol Pot would contribute to a safer world; a court that could prosecute U.S. peacekeepers in Bosnia would not," conservative commentator Adrian Karatnycky wrote recently.

But Pace, at the Coalition for an International Court, says the Pentagon is over-reacting. "The U.S. is not the only country that wants to protect its military. Every country has that interest, and they have built into this statute the kinds of safeguards that should satisfy the United States," Pace says.

Advocates of an international court say an independent prosecutor who can initiate investigations of suspected war crimes or crimes against humanity on his or her own is essential. But some countries want the court to act only on referrals from the U.N. Security Council, or want the permanent members of the Security Council to have a veto over cases being referred to the prosecutor.

Christopher Hall, legal advisor to the Amnesty International in London, says the Security Council has proved it is not an effective body for initiating war crimes prosecutions.

In half a century the Security Council has established only two ad hoc tribunals, the ones for ex-Yugoslavia and Rwanda. Hall names a number of countries that probably required tribunals -- Cambodia, Iraq, Liberia, Argentina -- but none was ever established. Nor, he says is there much evidence the Security Council will be any more active in the future. As Hall puts it: "Its selection of cases is a purely political matter, not a legal one." Such decisions are better left to an independent prosecutor, he says.

Some U.S. commentators, such as Karatnycky, have expressed fears that an international judiciary selected by the UN General Assembly will be dominated by undemocratic countries. But Pace rejects this argument as "the same old xenophobic unreality that has existed for a very long time."

He says "the truth is, it'll be an impartial panel of some of the most eminently qualified people in the world, as the International Court of Justice is." That court, in The Hague, settles disputes between countries, and does not hear cases against individuals.

Judge Gabrielle Kirk McDonald, president of the tribunal for former Yugoslavia, and an outspoken advocate of a permanent court, also wants to see an international court with powers to compel states to co-operate -- a power her tribunal has not had.

Advocates argue that an international court is needed more now than ever, because in this century the way wars are waged has changed. Since 1945, traditional wars between states have become less common. The Canadian scholar Kalevi Holsti says that since the 1970s, most deaths in armed combat have been in civil wars and most of those have been civilian casualties.

As the conflicts in former Yugoslavia and Rwanda illustrated, soldiers no longer wage war against each other, but soldiers and paramilitaries slaughter civilians as a goal of war.

As Judge McDonald puts it, "innocent civilians are targeted because of their ethnicity, religion, because of the place they live."

Judge McDonald says that if a permanent international criminal court can't completely end this way of waging war, it can at least help to deter it.

Pace says the end of the 20th century brings a unique opportunity to establish long-term peace in the world.

"We have the opportunity now of going into the next century," Pace says, "and the question is, will this brief post-Cold War period become an epic of peace? That's what this court represents the hope of, that we will begin a process now in the next century of a long-term epic of peace on this planet."