CREATING AN INTERNATIONAL CRIMINAL COURT June 97
In our time, the world has seen some of the most horrific mass crimes in history. Yet most of the criminals walk free. In 1946, the defeated war criminals of World War II were tried for their crimes at historic tribunals in Nuremberg and Tokyo. The international community determined that war crimes, crimes against humanity, genocide and military aggression should never again go unpunished. They talked of setting up a permanent international court to address such horrors and help prevent them in the future. But nothing was done...
As a result, military and political leaders responsible for the deaths of millions-such as Saddam Hussein and Pol Pot-never had to fear prosecution for their crimes.
Right now, a process is going on at the UN which will, finally, make an International Criminal Court a reality by the end of the century. You can help make sure that an effective, independent Court is set up. If this happens, it will transform the prospects for human rights in the years to come. For the first time ever, leaders who want to commit mass murder will face the prospect of arrest and trial.
By 1994, the international community, spurred on by the atrocities in Rwanda and the former Yugoslavia, finally agreed that a permanent International Criminal Court was needed. In June 1998, the world's governments are scheduled to meet in Rome to adopt a treaty which, once signed and ratified, will finally establish the Court.
But this is not as simple as it sounds. Between now and June 1998, a series of high-level meetings will take place to decide exactly what powers the Court should have. Many governments are doing their best to cripple the Court before it is even born.
Three issues crucial to the Court's success are:
CRIMES: Most people agree in principle that the International Criminal Court should be able to try individuals for genocide, war crimes and widespread abuses of human rights. Many nations and groups of legal experts and citizens also want to see aggression included as a crime, as it was at Nuremberg, thus allowing leaders who engage in unprovoked international aggression to be tried.
INDEPENDENCE: The independence of the Court is being hotly debated among governments. If the Court is too closely connected to the UN's Security Council, or requires the permission of a national government to investigate a crime within its borders, it could be influenced by political concerns-even, potentially, subject to veto by the criminal himself. It is crucial that the Court is free to prosecute any individual.
"TRIGGER MECHANISMS": It is important that individuals and citizen groups, as well as the Court's prosecutor and governments, are allowed to bring cases to the Court.
What You Can Do
On 4-15 August, the latest of a series of international meetings will be held to determine the working of the Court. Another meeting takes place in December. Now is a crucial time to make your voice heard.
Please write to one or more of your representatives in your national parliament/congress. Ask him or her to urge your government to support, at the preparatory meetings leading up to June 1998, the establishment of a permanent International Criminal Court which will:
* Have the jurisdiction to try individuals for the most serious international crimes: genocide, war crimes, crimes against humanity and aggression.
* Be a genuinely independent body, with its prosecutor able to investigate all cases free from political pressure.
* Allow cases to be brought by governments, individuals and non-governmental organisations-as well as the Court's prosecutor.
BACKGROUND
Finally, the world stands poised to take a major step toward closing a glaring gap in the international legal order. Fifty years after the Nuremberg and Tokyo war tribunals condemned aggression, genocide, war crimes and crimes against humanity, all nations now seem agreed that a permanent international criminal tribunal should be created soon. A treaty laying the foundation for such a tribunal is expected to be adopted at an intergovernmental conference in Rome in June 1998. But success is by no means assured.
How far have we come, and what are the problems?
Slow Progress
The aggressions and atrocities committed by Germany and Japan during World War II inspired the new United Nations to pledge that "never again" would such crimes be tolerated. Though there was-and still is-an International Court of Justice, based in the Hague, in the Netherlands, it only has the authority to deal with disputes among states that accept the Court's jurisdiction. It has no power to punish individuals. After the war, UN committees were assigned to draft a 'Code of Offences Against the Peace and Security of Mankind' and to draw up statutes for a standing International Criminal Court. But the process got bogged down in details. UN delegates wrangled for years while wars of aggression and crimes against humanity continued unabated in many parts of the world. Those responsible for the slaughter of helpless millions went untried and unpunished.
In 1991, violent ethnic fighting erupted in the former Yugoslavia. Reports of mass rapes and horrendous brutalities shocked people all over the world. Public outrage stimulated the UN Security Council, acting within its peace-keeping authority, to move quickly. Recognizing that there could be no peace without justice, the Council set up its own subsidiary organ to try the criminals-the International Criminal Tribunal for the Former Yugoslavia (ICTY). By 1994, despite great difficulties of financing and organization, the ICTY, with outstanding multi-national prosecutors and judges, began its work. It was the first truly international criminal court since Nuremberg.
Later, in 1994, when Rwanda was racked by genocide, the UN Security Council quickly created its second criminal court-The International Criminal Tribunal for Rwanda (ICTR). Despite enormous problems faced by these two new judicial organs, they were important steps forward in the development of international law and order.
But both these tribunals had restricted jurisdiction to try certain crimes committed in a specified territory during a limited time. If a permanent court had already existed, these ad hoc innovations would not have been necessary, and the perpetrators of those crimes would have known in advance that they would be subject to prosecution. All states now seem to recognize that what is needed is a permanent institution created under international control to administer justice equally to all.
The Negotiating Process
The International Law Commission, world renowned experts elected by the United Nations, finally completed its 60-article draft Statute for a Permanent International Criminal Court in 1994. Its Code of Crimes was completed in 1996. Together they offer a fair trial for the accused and a more just world order under law. The 185 member sovereign states of the United Nations have different legal traditions and cultures. It would be folly to expect all of them to
agree upon everything. Many states and non-governmental organizations have varied views about most provisions. Differences are being debated at great length and compromises are being found. A Preparatory Committee will meet again at the United Nations for four weeks during August and December 1997 and finally from 16 March to 3 April 1998 in the hope that a widely acceptable text can be presented to high-level diplomats scheduled to meet in Rome in June 1998.
The current plan is to adopt the statutes for a permanent International Criminal Court in the form of a treaty that each state can decide to accept or reject. Nations have not yet agreed on which crimes shall fall within the jurisdiction of the new tribunal. Almost all favour limiting the Court's jurisdiction at the outset to a few core crimes, such as those approved at Nuremberg: aggressive war, crimes against humanity, war crimes and genocide.
The Obstacles
The inclusion of 'aggression' as a crime to be considered by the Court is a much-debated issue. Many nations and many groups of legal experts insist that aggression must be within the jurisdiction of the Court and thus punishable, as it was at Nuremberg. Those who would exclude aggression argue that it has not been sufficiently defined. But Nuremberg and other tribunals condemned aggressive war even without a definition, and the International Law Commission's draft code for the new Court contains an adequate definition of what the Nuremberg Tribunal described as "the supreme international crime."
On top of this controversy, a considerable number of procedural differences have not yet been reconciled. One troubling question is whether the International Criminal Court will have priority over the courts of a nation state in trying the accused. It seems generally agreed that national states have primacy. If a state is able and willing to prosecute-in a fair and reasonable way-no international intervention is necessary. But since aggression, genocide, and crimes against humanity are usually committed with the consent or complicity of a national government, the presence and primary power of an international tribunal is essential if world society is to be effectively protected. There should be very few restraints on who can bring charges, providing there are adequate judicial safeguards against frivolous or politically-motivated complaints.
One major way governments are attempting to weaken the Court is by surrounding it with national vetoes. This could mean allowing the Security Council to prevent an issue coming before the Court, or requring that the Court gain the permission of the national government where the crime was committed before it can investigate the crime. Clearly, this would profoundly weaken the Court.
Enforcement also remains a fundamental problem. The tribunals for Yugoslavia and Rwanda have been severely handicapped by their inability to apprehend wanted criminals and to obtain complete cooperation from all states concerned. Failure to arrest the suspects makes a mockery of the judicial process. This failure must be corrected, possibly by an international force of marshalls empowered to arrest those indicted by the Court. If there is no enforcement, the Court's effectiveness will suffer.
During the remaining months before the diplomatic conference is to take place, these and many other points will continue to be debated and compromises sought. The search for consensus, both necessary and desirable, should not be stretched till it becomes a fatal trap. What is being proposed is a newborn infant trying to walk toward a more humane and peaceful world. It may stumble and fall along the way. But it must be helped to succeed.
For more information, contact:
NGO Coalition for an International Criminal Court
William Pace
777 UN Plaza, 12th Floor
New York 10017
USA
Tel: 1 (212) 599-1320
Fax: 1 (212) 599-1332
Web: www.igc.apc.org/icc
Amnesty International
Christopher Hall
1 Easton Street, London WC1 8DJ
United Kingdom
Tel: 44 (171) 413-5500
Fax: 44 (171) 956-1157
Web: www.amnesty.org
Human Rights Watch
Richard Dicker
485 5th Avenue
New York 10017
USA
Tel: 1 (212) 972-8400
Fax: 1 (212) 972-0905
Web: www.hrw.org
Constitutional Rights Project
Clement Nwankwo
18 Awoyemi Close, Ayinde Giwa
PO Box 4447, Surulere
Lagos, NIGERIA
Tel: (234) 1 584 3041 / 8498
Fax: (234) 1 584 8571
Email: crp@lagosmail.sprint.com
Benjamin Ferencz
Former Nuremberg War Crimes Prosecutor
14 Bayberry Lane
New Rochelle NY 10804-3402
USA
Tel: 1 (914) 632-3717
Fax: 1 (914) 633-0005
Email: Benferen@aol.com