RIGHTS-ICC: Preparing for a Victor’s Court

By Farhan Haq Reprint | | Print |

ROME, Jul 13 1998 (IPS) - With negotiaions on establishing an International Criminal Court (ICC) grinding to a close this week, it’s worth remembering that the reason 173 governments came together in Rome was to create a system of justice that would be more than just another ‘victor’s court’ – like Nuremberg or the recent UN tribunal for Rwanda.

In one major sense – which has become more apparent as divisions over the powers of the ICC have been more clearly defined here – the ICC, however, is in many ways indeed serving as a victor’s court.

Throughout the intense debate that began in Rome Jun. 15, and is slated to end Friday, supporters for strong ICC powers – including independence for the Court’s prosecutor and limited oversight by the UN Security Council – have been clearly marked by their own struggles for basic human rights.

The fate of the conference now appears to hangs in the balance but some 60 countries – mostly from Eastern and Western Europe, Southern and Central Africa and Latin America and the Caribbean – cling to the belief in the viability of a tough, independent Court.

Significantly, for many of those governments, often dubbed the ‘like-minded states’, the Court is not simply an international institution, but a promise to their own constituents that the recent dark era in their history will not be repeated.

South Africa, with its own experience of a Truth and Reconciliation Commission, has helped push along measures to ensure that victims of atrocities can participate in the ICC’s work, and have also helped to obtain the inclusion of the crime of apartheid among the Court’s work.

Latin American nations, meanwhile, have proved to be staunch opponents of most efforts to protect military regimes from the consequences of their actions.

Notably, when some countries pushed for officers to have a wide berth to claim that superior orders could excuse them from responsibility for their crimes, two key countries which tried to narrow that excuse were Germany and Chile – places where the phrase ‘superior orders’ has a decidedly sour ring.

From Eastern European countries, emerging from decades of Soviet domination, to African states throwing off the yoke of colonialism and apartheid, supporters of an ICC with a wide jurisdiction and strong mandate are all victorious.

As with all victors, they enjoy strong mandates from their constituencies to ensure that the particular evils their societies faced – from “ethnic cleansing” to “disappearances” – nust never happen again.

Latin American states can assure their voters that elected governments, not military juntas, will be the order of the day. African states which have faced several rounds of massacres can have insurance that the next cases will end with trials of the ‘big fish’ and not the ‘small fry.’

The Court therefore not only symbolises a kind of victory, but it consolidates it: the victory of democratic states over their authoritarian counterparts. But that also is where the difficulty of the Court lies, since the ranks of those victors may not be nearly enough to guarantee justice in the countries that actually need it – the ones which are not yet victors.

U.S. Ambassador David Scheffer, in laying out a hardline argument for states to consent to ICC jurisdiction before cases can be tried, argued that the Court needs to have the widest amount of support possible, or else that it would fail.

Despite criticism of the U.S. position by human rights groups, Scheffer’s point is a valid one. What good is a tribunal for the world’s worst crimes which would be actively resisted by the very nations where those crimes occur?

Diplomats at the Rome conference are already reasonably certain whom the Court’s jurisdiction will include and whom it will not. The like-minded nations are almost certain to join on to the ICC, on the lines of the compromise currently being developed, very quickly. Some other nations, including Japan and even a few Arab states, are also considering joining on, sources say.

Many other regions, however, still do not fit in the category of victors for this particular victor’s court. Most of North Africa and the Middle East, virtually all of South Asia and much of South-east Asia – and of course, the particular case of the United States – are unlikely to sign on to the Court.

Many of them are single-party states or countries, like Algeria or Nigeria, which have cancelled elections. Others have problems with brutal military occupation of territory, from India’s and Pakistan’s dispute over Kashmir to the Indonesian annexation of East Timor and Israel’s encroachment into neighbouring countries.

The U.S. case – like those, to a lesser extent, of France, China and Russia – stems from balancing the military role of a superpower with political pressures to ensure that such a role is not constrained or checked by any international body.

What this means is that the last week of the ICC conference has much the same dynamic as does any victor’s court. The ‘winners’ argue that they are upholding universal principles of justice; the ‘losers’ complain that the system is unfair, and loudly warn they will not accept its jurisdiction.

In this case, however, the ‘losers’ are powerful enough – especially thanks to the United States – to thwart the ICC’s establishment if they are not satisfied.

Although many activists spoke last week of the need to have the ICC without U.S. support if the price was, in the words of Human Rights Watch associate counsel Richard Dicker, “cutting the guts of this Court out”, few delegates really believe that is an option.

The European countries which enthusiastically support the ICC have no intention of excluding Washington, and few have any hope that the Court could actually work without the financial and political support of the United States.

The next few days, therefore, should reveal whether this is to be a Court for the world’s current democratic victors – or one which can help consolidate other victors in years to come.