HUMAN RIGHTS: Supporters of Criminal Court Focus on Internal Crimes

By Farhan Haq Reprint | | Print |

UNITED NATIONS, Feb 19 1997 (IPS) - As nations push ahead toward the creation of an international court to try a wide range of war crimes, one question has come to dominate discussion: How will the court treat conflicts within states?

Most of the 185 U.N. member states are broadly in favour of the idea of an International Criminal Court (ICC) that could try war crimes in a manner similar to the ad hoc U.N. tribunals judging crimes in the former Yugoslavia and Rwanda. All are agreed to finish preparatory discussions on an ICC by April 1998, with Italy pushing for an international conference in Rome that summer to debate the issue.

But the supporters are divided on exactly which crimes will fall within the ICC’s jurisdiction, with many states wary of giving the Court too much authority over internal conflicts.

“Will the Court be empowered to prosecute war crimes that are committed in internal armed conflict, as in El Salvador or Somalia?” asks Richard Dicker of Human Rights Watch.

Hina Jilani of the Human Rights Commission of Pakistan adds that many groups in the South hope the ICC will have authority to try “gender-based violence, especially acts of rape, forced pregnancy and forced prostitution.” Conditions where women’s rights are seriously curtailed, as in Afghanistan, she argues, should also fall within the Court’s jurisdiction.

“For many of us, without these kinds of powers, the Court will be stillborn,” Dicker says. Most of the major world crises, he argues, have to do with internal conflicts rather than wars between states.

Yet the divisions among nations over ICC jurisdiction are not clear. Over the past two weeks, as preparatory discussions have continued at the United Nations over the Court’s responsibilities, Northern and Southern nations alike have differed over how far they want the Court to go in examining internal conflicts.

India, for example, has been “less than helpful,” mainly because of worries that the Court could become empowered to investigate charges of abuses in Kashmir, one observer to the discussions says.

On the other hand, the analyst adds, many developing countries that have had recent experience in ending dictatorships — including Argentina, Chile, Malawi, South Africa, South Korea, and Uruguay — have become strong supporters of a powerful ICC. “There is no monolithic position from the South on this issue,” he says.

Similarly, the ICC has been warmly backed by most Scandinavian countries and the European Union, but has faced an uphill struggle in the United States.

Washington has moved forward in recent weeks to recognise a greater role for the ICC in internal conflicts, Dicker says. But he adds the improvement “is not enough of a step forward.”

In one draft proposal, the United States approves of ICC jurisdiction “in the case of an armed conflict not of an international character,” but only over non-combatants, including civilians, and any wounded or surrendered fighters. In such cases, the United States feels the Court could judge acts of violence, including murder and torture, the taking of hostages and “outrages against personal dignity,” such as humiliation.

However, the International Committee of the Red Cross is seeking wider ICC jurisdiction over internal crimes. First, it would like the Court to oversee all crimes, not simply those against non-combatants. It also specifies a wider range of abuses that could be investigated, including collective punishment, rape, enforced prostitution, starvation, the recruitment of child soldiers, displacement and intentional attacks on civilians.

Ultimately, such differences turn on questions of sovereignty. For many countries, worries about turning sovereignty over to a body empowered to level criminal charges and make convictions over a variety of crimes could lead governments not to join the ICC when it begins, warns William Pace, executive director of the World Federalist Movement. Yet he cautions, “If this Court is just an ‘opt-in’ court…it’s going to be less effective.”

Still, even supporters of the ICC admit that the lessons of the Yugoslavia and Rwanda tribunals show some of the limits the Court could face. Pace concedes that the problems in arresting major indicted war criminals in Bosnia-Hercegovina (such as Bosnian Serb Gen. Ratko Mladic and political leader Radovan Karadzic, who remain at large) demonstrate the problems any international court will have in apprehending suspects.

Similarly, a recent spate of killings of survivors of Rwanda’s 1994 genocide has drawn attention to the problems an ICC may face simply trying to protect witnesses to war crimes. “These are extremely difficult crimes to investigate and to prosecute,” Dicker says. Nor have the ad hoc tribunals earned much praise, with the Rwanda tribunal earning sharp criticism for “mismanagement in almost all areas” in a U.N. review last week.

Nevertheless, many human rights groups are enthusiastic at the progress of the discussions for the ICC, which only a few years ago, during the 1994 Human Rights Conference in Vienna, seemed a distant prospect. Now, many nations are gearing up to secure approval of such a court by the summer of 1998. “We in Africa are in a hurry to see this court established, since it will solve many problems,” argues High Court Justice Moctar Ndao of Senegal.