From June 15 until July 17, 1998, diplomats from around the world are assembling an International Criminal Court (ICC). Complementing the International Court of Justice in the Hague, which hears disputes between governments, the ICC would investigate and try individuals accused of genocide, war crimes and crimes against humanity. An ICC, had it existed, could have been the venue for the work of the special tribunals now dealing with the atrocities committed in Rwanda and the former Yugoslavia. In 1997, when the Khmer Rouge appeared ready to hand over Pol Pot for prosecution, Cambodia was in no position to adjudicate and there was no existing international forum. An ICC could have fulfilled this role. Had it existed in 1988, an ICC would also have been the place to draw up an indictment against Iraqi President Saddam Hussein and his top cohorts for their genocidal campaign against that country’s Kurds. Such a court can be crucial in addressing war crimes against women, including rape and sexual slavery, which are often ignored in national courts and have been minimally pursued by existing ad hoc tribunals.

The draft statute to be finalized in Rome still contains many “brackets,” or disputed language. A key element in the outcome is the role of the US government and its efforts to ensure that actions of US citizens, particularly military personnel, remain beyond the conceivable reach of such a court. Will the ICC have the authority and independence to deliver justice, or will it be subject to veto control by the Security Council and/or by the states implicated in any investigation, as the US, France and other states suggest? A bloc of like-minded states including Canada, Germany, South Africa and Argentina have worked closely with non-governmental organizations to promote an effective and independent court. They have insisted on treaty language extending automatic jurisdiction of the court to cover war crimes and crimes against humanity as well as genocide. Among the like-minded group are states that have undergone transitions from authoritarian rule and understand how impunity undermines political reform and the rule of law. (Among the states of the Middle East, Egypt through late 1997 had aligned itself with the like-minded group, but recently has sided with India, Iran, Colombia and other opponents of an effective court. Tunisia and Algeria have also favored a weak court, while others have kept low profiles in the preparatory meetings.)

The US position in ICC negotiations would compromise the court’s independence and credibility by politicizing the most crucial decisions — namely, determining which cases the ICC will be able to consider. Some of the organizations and governments involved in the ICC campaign cite the recently concluded international treaty banning the use of anti-personnel landmines to argue that the priority should be an effective and independent court, even if the US declines to sign the treaty. The Clinton administration is eager not to be sidelined once again, as it was in the Ottawa landmines negotiations. Yet Washington contends that the two treaties are not comparable and that there could be no meaningful court without the participation and financial support of the United States. These are the stakes going into the final conference in Rome.

Security Council or State Consent

The issue of the court’s independence and credibility revolves around three areas of dispute. The first area concerns the role of the Security Council. The current draft denies the court jurisdiction in situations that the Security Council is “dealing with,” unless the council expressly authorizes the court’s involvement. Since the court&rquo;s areas of jurisdiction — war crimes, genocide and crimes against humanity — are situations likely to be under active Security Council scrutiny, this would give an effective veto to any of the permanent members. Singapore has proposed that the Security Council as a body be able to delay or forestall the ICC’s involvement in such an instance. Rather than any one member of the council’s Permanent Five being able singlehandedly to stop the court from moving forward on a case by vetoing approval, under the Singapore proposal a member of the Permanent Five could stop the court from pursuing a case only by obtaining the agreement of the other four members and a majority of the entire Security Council.

Britain has endorsed the Singapore compromise, and there are indications that the US, finding itself relatively isolated on this question, will eventually support it as well. In dropping such hints, though, Washington has also signaled that it intends to secure US veto power by other means — namely, by insisting on language that would require the ICC, before it could initiate an investigation, to secure the consent of any state with an “interest” in the case. According to some proposals, “interested states” could include the state with custody of the accused, the state where the alleged crime took place and the state of the accused’s nationality. One US official involved in the negotiations privately characterized the consent issue as “our nuclear bomb" in the negotiations, referring to the intimidating and potentially destructive impact of this stance, which has the support of many other states wishing to preserve impunity for gross human rights violations.

Jurisdiction and Complementarity

A second major area of contention is the ICC’s authority to determine which cases it will investigate and prosecute. There is considerable support, including from the US, for enlarging the present language of the draft states to give the court inherent jurisdiction over not only genocide but also war crimes and crimes against humanity, such as targeting non-combatants, mass rape and torture. Because these are crimes considered to be covered by customary international law, all states should be subject to ICC jurisdiction over such matters whether or not they have signed a particular treaty or convention. But the US is threatening to insist that even here interested states would have to give express consent to the ICC to prosecute individual cases.

A key aspect of the “state consent” question is complementarity — in other words, the relationship of the ICC to national criminal justice systems. The purpose of the ICC is not to replace or substitute for those systems but rather to operate where such systems do not exist or are ineffective. It is to make sure that those responsible for the most heinous crimes are investigated and prosecuted when political turmoil renders a national justice system ineffective or when the government itself is responsible for gross abuses. A credible ICC would spur governments to ensure that their judicial systems function effectively as the first line of accountability. If the statute is drafted to specify the court’s jurisdiction over such crimes, it would encourage national governments to address crimes of sexual violence on a mass scale.

The present draft statute language, however, fails to clarify where responsibility lies for determining the inability or unwillingness of a state to conduct a genuine investigation or prosecution. If the final statute’s wording is weak, a state could decide unilaterally not to cooperate with the ICC by deeming its own actions sufficient. States should be able to challenge the ICC’s jurisdiction in a given case, but it is important that the court have the final decision. The US says that it is reserving its position on the issue of state consent until the relationship between the ICC and the Security Council is clarified. This suggests that Washington intends to emerge from the negotiations with its veto power preserved in one way or another. Of course, a high consent threshold also has the support of numerous other states anxious to guarantee the same prerogative of immunity for themselves.

A third and related area of dispute concerns the role of the ICC prosecutor. Under present language, the prosecutor can initiate an investigation only in situations referred by the Security Council or in response to a complaint from a state that has ratified the treaty. This reduces the ICC to the executor of decisions that prominently embody political considerations. The ICC’s trigger mechanisms should be expanded to allow the prosecutor to initiate an investigation on his or her own findings or on information obtained from individuals or nongovernmental organizations. Provisions of judicial review now in the treaty will safeguard against the court’s taking up frivolous, spurious or politically motivated complaints. Prosecutorial independence will be important if the court is to address adequately gender-based war crimes.

The Pentagon and the ICC

The very problematic US positions on these key issues derive mainly from the insistence of the Pentagon on the ability to prevent the prosecution of US military personnel for actions undertaken in the course of duty. The administration cites the global deployment of US forces, particularly those assigned to peacekeeping and humanitarian intervention missions, to suggest that it ought to have some special dispensation when it comes to accountability. “No other country shoulders the burden of international security as does the United States,” David Scheffer, chief US negotiator for the ICC, said in late February, citing Security Council mandates, NATO commitments, humanitarian objectives and counter-proliferation. “It is in our collective interests that the personnel of our militaries and civilian commands be able to fulfill their many legitimate responsibilities without unjustified exposure to criminal legal proceedings. The permanent court must not be manipulated for political purposes to handcuff governments taking risks to promote international peace and security and to save human lives,” he added.

Leaving aside the disputable claim that the global deployment of US military forces is primarily for humanitarian purposes, there are several reasons why Scheffer’s scenario is far-fetched. First, the court’s jurisdiction will be limited to genocide, war crimes, and crimes against humanity, not isolated and minor offenses committed during a peacekeeping or aid delivery mission. Second, if and when serious crimes and atrocities are committed, it will remain the paramount responsibility of a national judicial or military justice system — which certainly exists in the United States — to investigate and prosecute those alleged to be responsible. One of the desirable effects of a standing ICC is precisely to spur individual countries to meet their responsibilities to investigate and prosecute such crimes. Third, the draft treaty contains checks and judicial review procedures that would prevent an ICC prosecutor from pursuing politically motivated and spurious allegations. Only if US troops committed atrocities in the line of duty and were not investigated and prosecuted by US authorities could such a case be addressed by the ICC. That is the point of justice for all.

How to cite this article:

Joe Stork "Constructing an International Criminal Court," Middle East Report 207 (Summer 1998).

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