UN-HUMAN RIGHTS: Security Council Wants Precedence Over New Court

By Farhan Haq Reprint | | Print |

UNITED NATIONS, Aug 14 1997 (IPS) - An International Criminal Court (ICC) to try cases involving genocide and other war crimes is now close to being established but the five major powers in the U.N. Security Council want to control such a body, officials here say.

“The momentum for an International Criminal Court is irreversible,” says Richard Dicker, associate counsel to Human Rights Watch. “The question, however, is whether the Court will be an effective body, or a judicial Potemkin village.”

Activists supporting the creation of an ICC – likely to occur at a conference in Rome next June – worry that the five permanent Security Council members – Britain, China, France, Russia and the United States – intend to block any move to grant the Court the authority to try cases on its own initiative.

The five countries want the ICC to pursue cases only at the request of the 15-nation Council, where all five have veto power. Diplomats who have attended preparatory meetings to devise guidelines for the ICC say that the Council powers are virtually isolated in this debate. Developing countries in particular are adamantly opposed to a Court that would be so greatly under the control of a handful of nations.

At issue is whether any body besides the Security Council can have jurisdiction over matters involving threats to international peace and security. The Council has broad authority over such matters conferred to it by the U.N. Charter, and its five key members are unwilling to relinquish it easily.

“My impression is that the permanent members of the Security Council are very eager to keep their (responsibilities) under the Charter as they are,” said Adriaan Bos, legal advisor to the Netherlands’ foreign ministry and chairman of the current ICC meetings, which end Friday.

As a result, he said, nations will have to determine how to create an effective Court while “taking into account the competence of the Security Council.”

That task may not be easy. Some countries in the South are worried that, if the ICC is seen to be taking instructions on what cases to pursue from the five permanent members, it will lack credibility. There is the fear that “the ICC could be used to harass states from the South,” said Connie Ngondi, executive director of the Kenya branch of the International Commission of Jurists (ICJ).

The Security Council row is linked to several other disputes over how powerful the ICC will be – and, specifically, how much authority the prosecutor of such a body will have to initiate proceedings. Diplomats here have also been debating when the ICC would act and when it would have to defer to the sovereignty of national courts.

Nations are broadly agreed that prosecutors can have jurisdiction to gather information and try suspects on cases involving genocide. On the other cases potentially to be included in the ICC docket – war crimes and crimes against humanity – the picture is murkier.

The five Council powers want to refer all cases to the ICC, in the same manner that the Council authorised the ad hoc war crimes tribunals that presently are trying cases involving Rwanda’s 1994 genocide and the wars resulting from the break-up of Yugoslavia. But many developing nations and non-governmental organisations want the Council only to refer broad situations to the Court, rather than specific cases – as Singapore proposed recently.

“The ICJ shares the concern of many states that the independence of the Court must be fully preserved,” said Mona Rishmawi, director of the ICJ’s Centre for the Independence of Judges and Lawyers. “This requires that the Court not be bound or restricted by a political body structure such as the Security Council.”

The five permanent members have found little support for their position among the other 180 U.N. member states. Yet they have managed to forge alliances on other issues – particularly on the concerns about whether prosecutors would only be able to initiate investigations upon the request of interested governments, or could do so on their own “inherent jurisdiction”.

According to one lawyer familiar with the ongoing debate the United States, which wants to restrict the powers of the prosecutor, has the support of several powerful Southern countries – notably Mexico, Kenya, Nigeria, India and Indonesia. One diplomat, speaking on condition of anonymity, called the Third World opponents of greater ICC jurisdiction “countries who feel they themselves may be called up before the Court one day.”

Advocates gor broader Court jurisdiction, the lawyer told IPS, include a broad array of countries, including South Africa and many of its neighbours; Chile, Argentina and the majority of Latin American countries overall; the Scandinavian countries; and Egypt.

Much of the dispute is expected to be resolved only when the conference to create the ICC convenes next year in Rome. Bos, however, is already encouraged by how far the Court has progressed.

“I do not know of any U.N. member state which is opposing the creation of an ICC,” Bos said. More than four decades after the ICC was first proposed to try future genocide cases following the Holocaust, the broad consensus behind the Court is itself an achievement, he added.