RIGHTS: Plea For An Effective International Criminal Court

By IPS Correspondents Reprint | | Print |

Ramesh Jaura

BONN, May 29 1998 (IPS) - Top experts on global law warn that a U.N. conference called to define the terms, duties and obligations of a future International Criminal Court (ICC) may be forced to make “foul compromises” by major powers with their own agendas.

Four permanent members of the U.N. Security Council — China, France, Russia and the U.S. — have voiced strong reservations on aspects of a future court’s operation. The fear is that combined, they will force a consensus set at the lowest common denominator, at the Jun. 15 to Jul. 17 conference in Rome.

“We see the risk that this significant, indeed historic project could be watered down to the lowest common denominator. The result would be a very weak Court, without any authority of its own,” says a German government position paper on the issue.

Germany, Britain and 12 other European Union member states favour an “effective, functioning, independent and thus credible” ICC. France wants to reserve the right for signatory countries to reject the court’s juristiction over cases involving their nationals.

Washington’s line could be crucial, but while a possible withdrawal of the U.S. from the project could pose problems, they need not be insurmountable ones, said Benjamin Ferencz, professor of international law at Pace University in New York.

“It will be better to have the U.S. sign right from the beginning. But if the U.S. is out, don’t let everything collapse,” said Ferencz, a veteran lawyer who prosecuted members of the Nazi German ‘SS Einsatzgruppen’ — mobile death squads who took the Holocaust to villages and towns across occupied eastern Europe — at the post World War II Nuremberg Trials.

In this situation, he told an international conference here Thursday, it would be better to go ahead and establish the court with the 48 like-minded nations and muster later support among as many countries as possible from among 100 which have yet to make up their mind.

Ferencz told the conference, organised by the Bonn-based Peace and Development Foundation (SEF), that the U.S. stance on the Court was “ridiculous”.

The U.S. Senate objects on constitutional grounds. The right wing chairman of the senate foreign relations committee, Jesse Helms, Ferencz said, has vowed that any treaty to establish the ICC will be “dead on arrival” in the Senate unless Washington is given veto power over its functioning.

Human Rights Watch representative in Brussels, Lotte Leicht, told the conference that U.S. objections ran so deep that the Pentagon was organising its own campaign against a broad mandate for the ICC.

The Pentagon has confirmed a Apr. 14 report in the New York Times that defence officials had invited some 100 foreign military attaches to attend briefings on U.S. concerns on the proposed world court.

They argue that even officers and soldiers involved in U.N. peacekeeping operations could find themselves hauled before the ICC by unsubstantiated charges accepted by out-of-court prosecutors. The briefings were approved by the State Department official who heads the U.S. delegation to the negotiations, David Scheffer.

Scheffer was expected to join the Bonn conference Thursday, but, according to SEF director Burkhard Koenitzer, decided against participating.

“It is unlikely that Scheffer will back down from efforts to limit the Court’s authority,” said Andreas Zumach, a Geneva-based German journalist specialising in U.N. affairs.

Leicht said: “If it had gone the U.S. way, the land mines treaty (to which the U.S. are not a party) would not have been signed. In fact the use of land mines would have been legalised.”

She regretted that countries such as India and Pakistan — though now nuclear rivals — were pursuing a common objective aimed at mobilising the non-aligned movement (NAM) against giving broad jurisdiction to the Court.

Leicht and Zumach both said the Court should be given limited but sufficient power to determine whether or not there is effective national jurisdiction over specific cases.

However, the court should decide, not the countries. France wants signatories to the treaty establishing the ICC to have the right to reject its jurisdiction on a case by case basis. “Opt-in opt- out regime would lead to jurisdiction a-la-carte,” warned Leicht.

“In fact the prosecutor must be empowered to initiate cases brought up by NGOs and those affected,” she said, and praised Germany’s hard-hitting stance during the April preparatory meeting in New York.

“We reject the notion that cases can be brought before the International Criminal Court only through the Security Council or a complaint by a state party,” said German justice ministry spokesman Hans-Joerg Behrens.

“We support Singapore’s compromise proposal that the security council should only be able to block a procedure if it takes a joint decision to this effect — which would require that all the five permanent members speak with one voice.”

The German position paper, circulated at the conference, says: “The Court should be adequately empowered so as to be in a position to exercise jurisdiction over the four core crimes: genocide, war crimes, crimes against humanity and the crime of aggression, whenever national courts either do not exist or are not able or willing to prosecute in cases involving these crimes.”

Ferencz further warns against compromising justice in return for a peaceful settlement: “If you give up justice, you will neither have peace nor justice.”

In a position paper prepared for the SEF, founded by former German chancellor Willy Brandt, Ferencz says: “Nations must accept the Nuremberg Charter and Judgement as the foundation stone for the ICC.”