The world's first standing international criminal court comes into being tomorrow. The court's international charter empowers it to prosecute heinous crimes against humanity, such as genocide. Advocates of the court call its inauguration the greatest human rights advance in 50 years. But insiders warn against expecting any dramatic developments soon. They tell RFE/RL the institution has a long way to go just to get organized.
Prague, 10 March 2003 (RFE/RL) -- From now on, the war crimes trials in Nuremberg and Tokyo after World War II, the United Nations International Criminal Tribunal for the former Yugoslavia, and other international tribunals will appear as mere stepping stones along history's way to international criminal justice.
A permanent International Criminal Court (ICC) to try war crimes and crimes against humanity holds its inaugural session in The Hague tomorrow. The session will be a solemn ceremony heavy with symbolism. Presiding will be Prince Zeid Ra'ad Zeid al-Hussein, permanent representative of Jordan to the United Nations and president of the Assembly of States Parties to the statute that created the court. UN Secretary-General Kofi Annan and Queen Beatrix of the Netherlands will attend. The court's first 18 judges will take their oaths of office.
Symbolism is important for an event that supporters say is the most significant human rights advance in 50 years. But, actually, officials began the job of setting up the court last June and, after tomorrow's ceremony, will dive back in to their workaday administrative chores.
Phakiso Mochochoko is a legal adviser to the ICC. He told RFE/RL the real work of the court right now is behind-the-scenes preparation. "Well, there will not be very much of a change in the activities of the court. The main focus will continue to be on setting up the administrative structure of the court, and the arrival of the judges and, perhaps, the presidency is just one step forward in the ongoing activities," Mochochoko said.
The ICC has been long in the making. UN delegates have discussed it off and on since soon after the Nuremberg and Tokyo trials. Individuals, states, and nongovernmental organizations such as Human Rights Watch (HRW) have lobbied for it and contributed to the deliberations. In 1998 in Rome, 120 member states of the UN adopted a treaty to establish it. The treaty came into force last July after 60 states ratified it. To date, 89 countries have ratified the treaty.
HRW's Richard Dicker has been a full-time advocate for the court for years. "The inauguration of the 18 judges of the International Criminal Court is a historic milestone. It means this institution, this court, which may be the most important human rights mechanism created in 50 years, will begin to open its doors and slowly start its work," Dicker said.
Like Mochochoko, Dicker urges patience in waiting for the court to take public actions. "I don't have great expectations for the first couple of weeks or even months in terms of what we will see publicly. They have got to go about creating the institution," Dicker said.
Dicker said that, though HRW has been an unabashed champion of creating the court and plans to assist it with information and proposals for prosecutions, HRW also will resume its role as human rights watchdog to assure that prosecutions are just and that defendants receive fair hearings.
So far, however, the ICC's prosecutorial offices remain empty. The Assembly of States Parties plans to name a chief prosecutor in April. Mochochoko said that until then officials cannot even begin recruiting investigators. "There are separate organs of the court here, that is, the presidency, the registry, and the prosecutor. And in the absence of the prosecutor, who has the full authority over the resources and staff of his office, really much of the work in the prosecutor's office is not taking place at all. So there really has not been any recruitment of staff or anything that is going on in the office of the prosecutor," Mochochoko said.
To date, the greatest impediment to the ICC has been recent opposition from the United States. U.S. delegates participated vigorously in drafting the ICC treaty and statute in Rome. Bill Clinton, then U.S. president, signed the treaty. But the U.S. Congress raised objections, fearing that Americans might be subjected to politically motivated prosecutions. The United States never ratified the treaty, and President George W. Bush has withdrawn the United States from the agreement. He has even directed a drive that has persuaded about 20 small countries to sign bilateral agreements that they will not deliver U.S. citizens to the court.
Dicker, among many other court advocates, thinks the U.S. stance is wrong. "There's no question that this court would be stronger if the United States was not stuck in its ill-conceived opposition to the ICC. This decision to oppose the court by the Bush administration, I think, puts the U.S. on the wrong side of history," Dicker said.
The court's statute provides jurisdictional limits. One is that the court may act only when a national court is unable or unwilling to prosecute. Cases may be referred by a state party or by the UN Security Council or may be initiated by the independent prosecutor. The court may try only individuals, not states. Crimes against humanity are defined in detail and must be shown to be, in the statue's term, "widespread and systematic."
Mochochoko said the court staff, unperturbed by the U.S. objections, is simply moving along with its preparations. "Since we started our work here in June, and since the arrival of the director of common services, things have been going on smoothly with the establishment of the court. We have not had any problems. We have met the targets that we are supposed to do and we are continuing. So nothing so far has hampered our work in any way," Mochochoko said.
He said the impunity agreements that the United States negotiated with various countries, though another form of symbolism, are of little concern. Some are with states that are not parties to the court. Those that are parties, he said, remain bound by international law anyway. "The countries that have signed the agreements with the United States [and] which have also signed the statute are fully aware of their obligations under the statute and, so far, we have not had any experience of any hampering of our work, either from the United States itself or from those countries that have signed the agreements with the United States," Mochochoko said.
Mochochoko himself is a symbol of what is expected to be the court's concern for the small states and helpless peoples of the world. He comes from Lesotho, among the smallest and poorest. It is in southern Africa, is completely surrounded by South Africa, and most of its gross national product is provided by Lesothans holding jobs in South Africa.
Mochochoko was a lawyer practicing in Lesotho until he was named legal adviser to the Lesotho Mission to the UN. In that role, he participated actively in the negotiations to create the ICC prior to the Rome conference, in Rome, and since then. He left his position with the Lesotho Mission to accept appointment to the court.