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UN: Effort To Create International Court Reaches Milestone Amid U.S. Opposition

  • Robert McMahon

The first permanent court set up to deal with the world's worst crimes will come into force in July. Supporters say the rapid creation of the court marks a landmark in international human rights law, signaling an end to impunity for those commit genocide, war crimes, or crimes against humanity. But U.S. opposition remains strong and could pose serious challenges to the scope of the new court.

United Nations, 12 April 2002 (RFE/RL) -- The International Criminal Court will take force on 1 July and is on track to begin functioning early in 2003, much sooner than even its biggest supporters expected.

A ratification ceremony of 10 countries on 11 April marked the crossing of the 60-state threshold needed for the creation of the court, known as the ICC. UN diplomats and non-governmental organization activists now believe that by next year 100 countries will have ratified the Rome Treaty, which created the court.

Its jurisdiction will include genocide, crimes against humanity, and war crimes. The crime of aggression will also eventually come under the jurisdiction of the treaty, but there is still ongoing discussion about how to define aggression. The treaty does not cover terrorism, which the UN General Assembly is still struggling to define.

UN Secretary-General Kofi Annan spoke yesterday in Rome. He outlined the court's purpose: "Those who commit crimes, war crimes, genocide, or other crimes against humanity will no longer be beyond the reach of justice. Humanity will be able to defend itself, responding to the worst of human nature with one of the greatest achievements -- the rule of law."

Such swift ratification of a treaty, signed just four years ago, is rare. Officials involved with the treaty say it indicates a new global commitment to international justice.

Bosnia was one of the 10 countries depositing its instruments of ratification yesterday and has special reasons for wanting to see the ICC succeed, said its UN ambassador, Mirza Kuzljugic: "Our citizens have been the victims of the kind of crimes that will be prosecuted before the ICC and we have seen difficulties in prosecuting the perpetrators before an ad hoc tribunal like the ICTY, so driven by these experiences, Bosnia and Herzegovina has made a special commitment to the establishment of this court."

The new court will have jurisdiction over crimes committed after 1 July 2002. War crimes related to Bosnia's civil war in the 1990s will continue to be prosecuted by the International Criminal Tribunal for the former Yugoslavia, or ICTY -- a temporary court created by the UN Security Council.

The ICTY has faced criticism by Bosnia's main ethnic groups for bias or flaws in prosecuting suspected war criminals. But Kuzljugic told RFE/RL that the tribunal remains an important tool of justice and reconciliation for Bosnians. And he said the permanent court will help complement other ongoing efforts to improve human rights.

"Only the work of ICTY, or in the future, the work of the ICC, will not be sufficient. We have to work on many other areas, to look at these institutions as complementary institutions to human rights mechanisms of local, national and international bodies," Kuzljugic said.

Many of the world's leading democracies have ratified the Rome statute, with the notable exception of the United States. U.S. officials have said the widespread deployment of U.S. armed forces around the world could expose them to politically motivated cases brought before the ICC.

The United States has sought immunity for its military staff from prosecution and is now considering the unusual step of revoking the treaty signature of former President Bill Clinton.

David Scheffer was Clinton's ambassador-at-large for war crimes and worked closely on drafting the treaty establishing the court. Scheffer, still a strong supporter of the court, told RFE/RL that he believes there are enough safeguards built into the treaty to protect U.S. interests.

"The United States would have to commit an extreme act of incompetence to actually subject an American citizen to the jurisdiction of this court. You'd have to work through many acts of incompetence by the United States for that to happen, and I think that's because we negotiated very hard to get those safeguards in there," Scheffer said.

The ICC will claim jurisdiction only when national courts of ratifying states are unable or unwilling to investigate or prosecute serious crimes.

The Rome statute does not require non-ratifying states to turn over suspects to the court. The court could still prosecute Americans in the event that a U.S. citizen suspected of a serious crime is in the territory of a state that has ratified the treaty.

Ruth Wedgwood is an international law expert and a critic of the new court. She recently advised U.S. Secretary of Defense Donald Rumsfeld on legal issues related to the war on terrorism and said the U.S. is uniquely vulnerable because of the extent of its overseas troop deployments --- about 220,000 men and women.

Wedgwood told RFE/RL that there are also unspecified areas of the Rome statute -- such as the legitimacy of bombing targets in a military campaign -- that could bring crews of U.S. warplanes, for example, under unjustified prosecution.

Wedgwood said a U.S. military person could conceivably become enmeshed in a moral dispute between the United States and some of its European allies over an issue such as proportional use of force.

"We have to do all kinds of military tasks that European countries and others don't deign to do, which means that they often will not be sympathetic with those tasks, have no experience with those tasks. And the law of armed conflict, which is the law that the court will be applying, is really often far more indeterminate than people suppose," Wedgwood said.

Supporters of the ICC say its very existence could help rein in the abuses of some government leaders and avert future crimes. But Wedgwood is doubtful the court can deter those determined to commit serious crimes.

"The Yugoslav tribunal existed and was up and running in the middle of the Srebrenica massacre in 1995, in the summertime, so is there actual deterrent effect of the threat of being turned over? Probably not," Wedgwood said.

The United States has recently been the most vocal opponent of the court, but two other permanent Security Council members -- Russia and China -- have also not ratified. Russia, like the United States, has signed the treaty. China has not, and few Asian states are among the 66 to ratify so far.

The court's 18 judges, as well as its prosecutor and registrar, are to be elected at the first assembly of states parties, which is to be held in The Hague in September.