International Criminal Court: a better way

November 14, 2001

They shall beat their swords into plowshares, and their spears into pruning-hooks; nation shall not lift up sword against nation, neither shall they learn war any more. – Isaiah, II, 4

We the peoples of the United Nations – determined to save succeeding generations from the scourge of war – do hereby establish an international organization to be known as the United Nations. – Preamble, United Nations Charter Adopted in San Francisco, 1945

[C]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. – Judgment of the Nuremberg Tribunal, Sept. 30-Oct. 1, 1946

From Biblical times to the founding of the United Nations in 1945, men and women have dreamed and worked for a world free from war. So far they haven’t done too well.

In the past 50 years, more than 250 conflicts have erupted around the world. More than 86 million civilians – mostly women and children – have died and over 170 million people have lost their property, their rights and their dignity. Nearly 15 million civilians have died in war-related incidents.

Now another chapter is being written as U.S. bombers drop their lethal loads on Afghan soil. The arrival of the first contingent of U.S. “observers” in Afghanistan is a certain harbinger of body bags once again appearing on the evening news.

This somber recognition prompts a growing section of people – here and worldwide – to ask, “Isn’t there a better way – can the international community develop mechanisms for dealing with the scourge of terrorism that do not rely on military force?”

The answer is “yes … but.” Yes, but it will take some doing to build global institutions with the authority to enforce existing international treaties and conventions – defining and forbidding war crimes, crimes against humanity and genocide – and to hold criminally responsible individuals who violate these norms. Many see the International Criminal Court (ICC), established in 1998, as the way to deal with these heinous crimes. If an international court of this type had existed in the 1970s, Chilean dictator Augusto Pinochet might have been put on trial for mass murder following the CIA-backed coup in Chile or former Sec. of State Henry Kissinger as an accomplice in those crimes.

The effort to create an ICC has been on the United Nations’ agenda since the adoption of the Universal Declaration of Human Rights in 1948. At the same time, the world body adopted the Convention Against Genocide, which called for international cooperation to liberate mankind from “this odious scourge.”

The convention characterized genocide as “a crime under international law” and it stipulated that those charged with genocide should be tried by “such international penal tribunal as may have jurisdiction.”

The 1948 session of the U.N. General Assembly also asked the International Law Commission to study the “desirability and possibility” of establishing an international judicial organ to prosecute people charged with genocide. That work was completed in 1994, after which the U.N. set up the Ad Hoc Committee on the Establishment of an International Criminal Court.

Things moved quickly and, in 1998, the U.N. organized a conference in Rome that completed work on the treaty and adopted a statute outlining the ICC’s authority, responsibility and administration. On July 17, 1998, 120 countries approved the package, seven voted “against,” with 21 abstentions. The “no” votes included the United States, China and Israel.

Some 1,000 non-governmental organizations from around the world participated in the deliberations that adopted the Treaty of Rome. The treaty and statute will become effective when 60 countries ratify it. So far, 43 countries, including most European nations, have done so. A major weakness in the process so far is that no Islamic or Asian country has yet ratified the treaty.

In addition to genocide, crimes against humanity and war crimes, the treaty establishing the ICC defines sexual violence such as rape, sexual slavery and enforced prostitution as crimes against humanity when they are committed as part of a systematic attack directed against any civilian population.

The ICC treaty is consistent with the “Nuremberg Principles,” which guided the trials of German and Japanese war criminals after World War II. Criminal responsibility will be applied equally to all persons without distinction as to whether he or she is a member of a government or parliament, an elected representative or a government official.

But unlike the Nuremberg and Tokyo courts, which sentenced Nazi and Japanese war criminals to death by hanging, the ICC cannot impose the death penalty. Nor can it address crimes committed before the treaty becomes effective and the actual establishment of the court.

Because the 161 countries that drafted the treaty – not all of whom voted on the final document – could not agree on definitions of aggression and terrorism, neither come under ICC jurisdiction as specific crimes.

However, despite this weakness, most students of international law are confident that these crimes are subject to prosecution as crimes against humanity. Because the treaty can be reopened seven years after coming into effect, both can be defined and included in the treaty at a later date.

Human rights organizations see the ICC as filling the gap between national courts and the International Court of Justice, whose jurisdiction is limited to interpreting international treaties and arbitrating disputes between countries on issues such as fishing rights and territorial disputes.

Until now that gap has been filled by ad hoc tribunals, such as the post-World War II war crimes tribunals, whose authority was limited to dealing with specific individuals charged with specific crimes.

In the years since, the United Nations Security Council has established two such tribunals. The first, headquartered in Arusha, Tanzania, was set up to try those responsible for the 1994-95 genocide in Rawanda, where more than a million people were, quite literally, hacked to death. The second, the International Tribunal for the Former Yugoslavia, was established during NATO’s war on Yugoslavia. Like the Rwanda tribunal, the tribunal was established by the U.N. Security Council, three of the five permanent members of which are also members of NATO. This raises serious questions about the tribunal’s independence or the impartiality of its judges and casts serious doubt on the tribunal’s eventual verdict.

The ICC, in contrast, would be a permanent court with 18 judges and a prosecutor elected by a two-thirds majority of countries acceding to the treaty. No two judges could be from the same country and all would serve non-renewable nine-year terms, a procedure meant to distance the court from the politics of the U.N. Security Council.

True, cases could be referred to it by the Security Council, as is the case with the existing tribunal system, but investigations could also be instigated on the application of a state party to the treaty or by the ICC prosecutor. This would reduce the possibility of the court being constrained by dictat of the permanent members of the Security Council, which includes the United States.

While human rights advocates are hopeful that the 60 ratifications will come soon, an International Criminal Court is in danger of being stillborn if the Bush administration has its way.

The United States has stridently opposed any form of international justice system that might, even conceivably, challenge its sovereignty and generally refuses to ratify international treaties of any type. But despite this, many treaties work because of signals from the White House that it will cooperate with enforcement, an unlikely scenario in the case of the ICC.

On Sept. 10, the very eve of the terrorist attacks in New York City and Washington, the Senate passed an amendment to the Commerce, Justice, State and Judiciary Appropriations Bill barring any further U.S. participation in negotiations about the court and prohibiting cooperation with it. Earlier legislation bans any U.S. funding for the court.

Potentially even more damaging to the ICC are attempts by the Republican far-right, led by North Carolina Sen. Jesse Helms, to win Senate passage of the American Servicemembers Protection Act (ASPA), which would direct the president to refuse to cooperate with the ICC in any way.

The bill would ban U.S. troops from serving on U.N. peacekeeping missions unless given immunity from ICC jurisdiction, would prevent any U.S. government agency from helping the court in any way and would block military aid to any non-NATO state that ratifies the treaty. The ASPA even goes so far as to authorize the president to send the marines to free any American soldier or official taken into ICC custody.

On Sept. 10, Helms attempted to have the ASPA passed as an amendment to legislation authorizing U.S. payment of its back U.N. dues. When that failed, he tried on Sept. 26 to attach it as an amendment to a bill providing appropriations for the Defense Department – and failed a second time.

But backers of the ASPA are vowing to reintroduce it at the earliest opportunity and say they have President Bush’s backing.

The right-wing effort to enact the ASPA is more than an attempt to protect U.S. “sovereignty.” Because of its overwhelming political and economic power, enactment of the Helms legislation would have a chilling effect on other countries who might ratify the ICC treaty. Thus, the first responsibility of the people of the United States should be to block Senate passage of the ASPA.

A second, longer-ranged, responsibility is to change the foreign policy of the United States and especially its relationship with the 187 nations that are members of the United Nations. While an admittedly difficult task, the question remains. “If not now, when; if not us, who?”

Whatever the weaknesses of the ICC, the effort to bring it into being offers an opportunity to discuss real alternatives to an endless and ever-widening war that carries with it the danger, as Fidel Castro said recently, “of making saints of the alleged perpetrators.”

“It would be better,” the Cuban president said, “ to build an altar to peace where humankind can pay homage to all the innocent victims of blind terror and violence, be it an American or an Afghan child.”

What better tribute to the victims of the terrorism of Sept. 11?


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