Showdown at the International Criminal Court
Fear of personal prosecution generates attempts to undermine the body
Andrew Lodge
Illustration: Ted Barker.
Meting out justice on the international stage has never been a simple matter. This is especially true when the crime committed is against the rights of another person or group, as in its most extreme form — genocide.
Human beings have a seemingly unparalleled capacity to enact harm on each other. History reminds us of this, but our generation hardly needs a history book to jog our memories. Genocide, torture, the killing of innocent civilians in war, the recruitment of child soldiers and any number of other attacks on human rights and dignity are a reality in the 21st century — it has happened and continues to happen in different corners of the world all the time.
So, what should be done about it? A growing number of countries think they may have the answer, or at least the beginning of one; they are calling for the widespread ratification of the Rome Statute.
In 1988, 120 countries signed the Rome Statute in the establishment of the International Criminal Court (ICC). According to the document, the ICC is the first “permanent, treaty based, international criminal court established to promote the rule of law and ensure that the gravest international crimes do not go unpunished.” It seeks to prosecute in four specific areas, namely: crimes of genocide, crimes against humanity, war crimes and crimes of aggression. Each of these four areas is carefully defined under the Statute.
Human rights
In 1948, in the wake of the hideous crimes of the Second World War, the world adopted the Universal Declaration of Human Rights, recognizing the “inherent dignity” of all people and that the “. . . equal and inalienable rights of all members of the human family [are] the foundation of freedom, justice and peace in the world.” The document was ratified in the UN General Assembly and has since become the most translated document in the world, according to figures provided by the UN.
The Declaration has a number of corollary documents, including the Declaration of the Rights of the Child and the Geneva Convention. The problems inherent in these kinds of documents, however, include jurisdiction, interpretation and, more fundamentally, the very ‘universality’ of a given statute.
Furthermore, as the 21st century has demonstrated, a state or a group may simply not find it expedient or in its best interests to respect human rights. While the Declaration was designed with the hope of preventing brutality, Amnesty International, the world’s largest human rights advocacy organization, notes that “the 20th century was perhaps the bloodiest in history. Millions of people were victims of genocide, crimes against humanity, war crimes, torture, extrajudicial executions and ‘disappearances.’” Much of this brutality against the innocent has occurred since the Declaration was signed.
The creation of the ICC and its opponents
In light of these human rights abuses of the most profound severity, many governments from around the world have been pushed into establishing a body to deal specifically with these types of crimes. With this in mind, the ICC was created.
However, not everyone is on board. Notable opponents to the treaty include nuclear powers Israel, China and the U.S.. In the case of the U.S., the Clinton Administration originally signed the treaty, but the country has since pulled out under President George W. Bush.
Perhaps not coincidentally, the most active and vocal opponent to the ICC has been the U.S.. President Bush has consistently stated that the U.S. “will not submit American troops to prosecutors and judges whose jurisdiction we do not accept. Every person who serves under the American flag will answer to his or her own superiors and to military law, not to the rulings of an unaccountable International Criminal Court.”
The Administration has repeatedly expressed its concern that rulings by the Court could become political. Bush is also uneasy that rules laid out by the ICC could hamper the State Department’s ability to carry out its military activities in the war on terror abroad.
“We will take the actions necessary to ensure that our efforts to meet our global security commitments and protect Americans are not impaired by the potential for investigations, inquiry or prosecution,” said Bush in his address to Congress in 2001.
Furthermore, because the Court has openly expressed its desire to prosecute high-ranking officials, like former Western ally and Chilean dictator Augusto Pinochet, the U.S. State Department is alarmed that military and even government officials could come under fire. As John Bolton, the current U.S. ambassador to the UN, stated in remarks to the Federalist Society in 2002, “No U.S. presidents or their advisors could be assured that they would be unequivocally safe from politicized charges of criminal liability.”
For Bolton, Bush and his administration, “The ICC inevitably will complicate the exercise of American geopolitical leadership.” As such, they conclude that “Congress should strive to maximize the chances that the ICC will wither and collapse.”
Immunity for some?
To that end, the U.S. has sought to establish parallel treaties, implementing the so-called Bilateral Immunity Agreements (BIAs) to ensure that American nationals — including former military and government officials — will not be handed over to the Court, should that possibility arise. As of July 2005, over 90 countries have signed such agreements, including 42 countries that have, paradoxically, signed the Rome Statute supporting the ICC. Meanwhile, 53 countries have taken a public stand against BIAs, and even more have not signed any such document so far. Such a position has not come without difficulties: 18 of these countries have already seen drastic cuts in aid from the U.S., with more expected to follow.
The Washington Post reported on November 26, 2004, that “a provision inserted into a $338 billion government spending bill for 2005 would bar the transfer of assistance money from the $2.52 billon economic support fund to a government ‘that is a party’ to the criminal court.” In part, this curtails funding that USAID (the U.S. development agency in charge of aid to developing nations) has earmarked for countries that have not signed a BIA.
International law in action
These US concerns regarding the Court are not merely theoretical, nor is the White House’s position merely symbolic. A prominent international group of lawyers, led by Canadian law professor Michael Mandel, sought to bring charges of war crimes against NATO leaders, including Bill Clinton and Tony Blair, for NATO’s activities during the conflict in the Balkans. Mandel argued that “this was an historic opportunity to demonstrate the even-handedness of international justice” by indicting leaders responsible for criminal activities on both sides of the conflict.
The group of lawyers’ argument was based on evidence published in the respected medical journal The Lancet and supplied by Dr. Will Podmore, who stated that “. . . NATO leaders acted in open violation of the Protocol Additional to the Geneva Conventions of 12th August, 1949, and the Protection of Victims of International Armed Conflicts (Protocol I), 8th June, 1977.”
Further evidence came from human rights groups like Amnesty International, who stated, “Whatever their intentions, NATO forces did commit serious violations of the laws of war leading in a number of cases to the unlawful killings of civilians.”
Former senior officials are not immune from international law either. The Pinochet case was well publicized, and Henry Kissinger, the former U.S. Secretary of State, no longer travels to certain countries in Europe for fear of being arrested for war crimes as a result of his role as architect of the Indochina conflict in the ’60s and ’70s.
The ICC and national jurisdiction
It is international pressures like these that have made the U.S. State Department, in addition to China and Israel, among others, refuse to sign on with the ICC. However, proponents of the ICC argue that the Statute is clear: the Court does not seek to replace national judicial processes and, in fact, gives national process priority. According to international human rights organization Human Rights Watch, the Court “gives states the primary responsibility and duty to prosecute the most serious international crimes, while allowing the ICC to step in only as a last resort if the states fail to implement their duty — that is, only if investigations and, if appropriate, prosecutions are not carried out in good faith.”
The stipulation that the ICC be used in conjunction with national judicial processes has not soothed detractors. The ongoing opposition has raised alarm among certain governments as well as a coalition of 1000 NGOs — including many of the most prominent groups — who see the U.S. State Department’s active attempts to derail the ICC as particularly disconcerting. Human Rights Watch Executive Director Kenneth Roth doesn’t mince words:
“Unsigning the treaty will throw the United States into opposition against the most important new institution for enforcing human rights in 50 years,” he stated in a 2002 interview with the BBC.
The concern among the supporters of the ICC is that, with its absence and, indeed, its active opposition, the world’s lone superpower will de-legitimate the Court. This absence, ICC proponents argue, coupled with the pressure applied by the U.S. on other countries, may result in an international body that lacks the clout necessary to deal with these very serious crimes against humanity itself.
To learn more about the ICC and the issues discussed in this article, visit the Court’s website at www.icc-cpi.int
