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UN: World Prepares For International Criminal Court With Hope, Anxiety

  • Don Hill

The International Criminal Court, a court with the worldwide jurisdiction to punish those who commit crimes against humanity and war crimes, comes into being on 1 July with the blessing, but not the universal participation, of much of the international community. RFE/RL traces the history of the court from its conception to next week's inauguration.

Prague, 28 June 2002 (RFE/RL) -- The International Criminal Court, or ICC, officially comes into existence on 1 July, putting perpetrators of war crimes or crimes against humanity on notice that, in future, they could be subject to prosecution and trial before history's first international court with global jurisdiction to punish such crimes.

The allies of World War II placed accused German and Japanese war criminals through tribunals in Nuremberg and Tokyo. Some dismissed those trials as "victors' justice." But more than 50 years later, it is evident that they set a precedent for the ICC, the most far-reaching international legal experiment ever launched.

The human-rights watchdog group Amnesty International was among the early advocates of the establishment of the ICC. Our correspondent talked by telephone to Amnesty legal adviser Christopher Hall in London. "We have been working for the establishment of a criminal court since about 1992-93, and we were also one of the founding members of the Coalition for an International Criminal Court, as well as a member of its steering committee," Hall said.

The movement toward creation of the ICC goes back to a proposal in 1872 by Gustav Moynier, one of the founders of the International Committee of the Red Cross. The proposal died before being realized, however, when international lawyers of the time pronounced it an impossibility.

After World War I, the League of Nations adopted, but never implemented, treaties to establish a permanent international criminal court.

Efforts after World War II to establish a court under United Nations auspices froze to death in the chill of the Cold War. The Soviet Union and the United States, both endowed with veto power in the UN Security Council, disagreed on these efforts, as on most things.

The proposal began to gather momentum again during the Balkan wars of the 1990s. The United States led in urging the UN Security Council to create a tribunal to prosecute war crimes committed in the former Yugoslavia. The Security Council also created an ad hoc -- specific and temporary -- tribunal to punish perpetrators of genocide in Rwanda.

On 15 June 1998, 160 countries convened a diplomatic conference in Rome to establish the ICC. It lasted a little over a month, with debates on more than 100 disputed details. It came so close to failure that UN Secretary-General Kofi Annan delayed until the last minute setting out for Rome to participate in the final press conference. But in the end, the participating countries voted overwhelmingly to approve the statute their compromises had made possible.

Amnesty International's Hall recounted some of the specifics that had to be settled. One was that the court would hear only cases that individual countries couldn't or wouldn't pursue. "The idea behind that is that, number one, it is the primary responsibility of states to investigate and prosecute these crimes," Hall said.

He said a hoped-for outcome is that the mere existence of the ICC will create pressure for countries to act. "Since the court will only be able to try a small number of cases involving those types of crimes, we hope that it will act as a catalyst to inspire police, prosecutors, and investigating judges all over the world to fulfill their responsibilities," Hall said.

The ICC statute provides protection against double jeopardy, that is, trying someone twice for the same crime. But it also empowers the court to act in case a government stages a sham trial to head off the prosecution of an accused. "But what the court can do is -- when a national court has conducted proceedings with the purpose of shielding that person from criminal responsibility or the proceedings were not otherwise conducted independently or impartially or consistent with the right to fair trial -- the court can step in and retry that person," Hall said.

The United States has been wary of the ICC from the outset. Bill Clinton, U.S. president at the time of the Rome conference, signed the treaty, but announced at the time that he would not send it to the U.S. Congress for ratification, the step that would commit the United States to cooperate with the court.

In May, President George W. Bush announced U.S. withdrawal from the treaty. But by then, other countries had provided the 60 ratifications required to bring the treaty into force. Seventy-one countries have now ratified the statute, including all the countries of the European Union, as well as Bosnia, Bulgaria, Estonia, Hungary, Romania, Slovakia, Slovenia, Tajikistan, and Yugoslavia.

The Bush administration has threatened to withdraw from international peacekeeping missions unless U.S. citizens are specifically exempted from trial at the ICC.

In the latest development, the U.S. ambassador to the UN, John Negroponte, said yesterday that the U.S. might veto a UN Security Council resolution extending the UN mission in Bosnia unless U.S. peacekeepers are given immunity from ICC prosecution.

Earlier this year, Patricia McNerny, chief of staff to the chairman of the U.S. Senate Foreign Relations Committee, summarized the U.S. concerns in an interview with RFE/RL. "The court is overly broad in its reach. It is not restrictive enough in terms of the authority of the prosecutor. Basically, you could have politicized prosecutions, unlike the ad hoc tribunal where we have a discrete topic and a discrete set of cases that has been approved by the Security Council. In this case [of the ICC], you have individuals within the court making the decisions on who, when, where to prosecute," McNerny said.

Among the nongovernmental organizations that supported the ICC were the Arab Organization for Human Rights and the Arab Center for the Independence of the Judiciary and the Legal Profession.

Atef Shahat Said, director of the ICC project of the Arab Center in Cairo, told our correspondent in a telephone interview that the Arab states also are wary of the ICC. Thirteen Arab states have signed the treaty, but only Jordan so far has ratified it.

The United States has concerns about the possible politicization of the court because the Security Council, where the United States wields veto power, does not have clear control over the court's reach. Said said the Arab states fear politicization because the Security Council has too much power. "One of the main fears is the double standard in international authority. [Arab leaders] fear this court will implement, that is, will find [cause to prosecute] Third World regimes or officials, while it will not be implemented in the First World. This is mainly because of Security Council interference in the ICC statute," Said said.

No official ceremonies have been announced to mark the 1 July inauguration of the court. But NGOs and others involved in the court's development plan announcements and news releases, and court advocates says they expect a flurry of additional national ratifications to occur on that day.

The court, to be based in The Hague, is not expected to begin hearing cases for another year, after the elections of judges and a prosecutor.

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