UNITED NATIONS: Rights Groups Press for Activist Criminal Court

By Farhan Haq Reprint | | Print |

UNITED NATIONS, Aug 5 1997 (IPS) - Human rights activists are pleased that plans to establish a new international court for crimes against humanity are on track, but they worry that many countries are still unwilling to grant the court full authority.

Supporters of an International Criminal Court (ICC) are largely upbeat as diplomats gather here for the next two weeks for the fourth in a series of meetings on the possible creation of a body empowered to try genocide and other major international crimes. The question is not whether a court will be created, they say, but what it will look like.

“The train is leaving the station,” said Richard Dicker, associate counsel for Human Rights Watch (HRW). “In a year’s time from now, we expect that the treaty establishing the Court will be open for signature.”

Since the U.N. General Assembly decided in 1995 to set up preparatory meetings on how to create an ICC, a growing number of nations have come out in favour of it. This month’s work is intended to pave the way for a formal treaty next year.

“The current (U.N.) tribunals on Rwanda and on the former Yugoslavia have demonstrated the need for a legal mechanism to bring to justice those who brutally break international law,” said Robin Cook, the British foreign minister, in declaring his government’s support for the Court last month.

However, many of the major human rights groups – notably HRW, Amnesty International and the Lawyers Committee for Human Rights – still doubt whether the Court, as currently envisioned, would have the power it needs to hear a wide range of cases.

The groups want the Court to be given “inherent jurisdiction” to prosecute accused criminals without first having to obtain the consent of interested states. (Current drafts of a treaty to establish the Court only give it that power for cases involving genocide.) Many also want the Court to operate without too much oversight by the U.N. Security Council, the world body’s 15-nation executive branch.

One major problem, said Jelena Pejic, senior programme coordinator of the Lawyers Committee, is that the permanent members of the Security Council – Britain, China, France, Russia and the United States – are opposed to allowing the Court to choose cases independently of the Council’s direction. Currently, the U.N. Charter allows only the Security Council to decide on matters of international peace and security – a power the veto- wielding permanent members do not want to relinquish.

The permanent Council members have also joined with several Southern states to question the principle of “inherent jurisdiction,” arguing instead that the Court can only rule on cases brought by the Council or with the consent of interested states, Pejic added. “These consent requirements will create significant possibilities for delay and obstruction,” a recent HRW study warns.

Rights groups also want the ICC to be empowered to conduct its own investigations, with prosecutors allowed to “trigger” investigations once any source comes up with information about rights violations.

“The contribution of information from victims is of particular importance and would be especially valuable in bringing perpetrators to justice,” HRW says. “We believe that the proper functioning of the Court must not be held ransom to political motivations of particular states or the Security Council.”

Yet, as states meet here to debate what powers to give the Court, there remain as many sensitive political fault lines as there are differing legal systems. “Legally, the relationship between the national judiciary and the ICC needs a very delicate and refined set of rules, leaving the competence of the national judiciary intact, but offering at the same time an alternative in case it fails,” said Adriaan Bos, the chairman of the U.N. preparatory committee for the Court.

Bos contends that it may be difficult even to establish ICC guidelines for penalties without becoming entangled in all the various differing legal systems of the world. Many European nations, for example, have already said that no Court should be set up if it can apply the death penalty – but the United States has no problem with capital punishment, which it allows.

“Can sentencing be left entirely to the ICC itself, or should minimum or maximum sentences be set beforehand?” Bos asked. “Set sentences would virtually amount to a harmonisation of criminal law in this area at the global level.”

Perhaps the largest problem, however, is the same one that the Yugoslavia and Rwanda tribunals face: bringing suspects to justice. Pejic noted that, even under the ICC’s current proposed guidelines, a suspected mass murderer like former Cambodian dictator Pol Pot – believed to be responsible for the deaths of more than one million Cambodians between 1975 and 1979 – could not be tried for genocide, since only a small proportion of his crimes were directed at ethnically-defined groups.

Capturing men like Pol Pot, or suspected Bosnian Serb war criminal Radovan Karadzic, has also proved difficult. But, Dicker noted, “One only has to look at Bosnia (today) to see the effect of a failure to bring war criminals to justice.”