RIGHTS-UN: US Odd Man Out as ICC Support Grows

By Farhan Haq Reprint | | Print |

UNITED NATIONS, Jul 27 1999 (IPS) - The United States remained opposed to the International Criminal Court (ICC) Tuesday – one year after 120 governments voted to set up such a body to try genocide and major war crimes.

The lone stance of the US government was underscored as governments convened for three weeks of preparatory meetings to determine the ICC’s rules of evidence and procedure and define the elements of the crimes to be tried by the Court.

On one hand, Jesse Helms, the Republican chairman of the US Senate’s Foreign Relations Committee, dismissed the ICC as “dead on arrival.” Other US officials have argued that, unless governments supporting the ICC would address their concerns about its power, Washington would oppose it.

On the other hand, the Court’s supporters appeared upbeat that it would gain the required number of governments would ratify the agreement for it to enter into force even without US support, perhaps as early as two years from now.

On Monday, Italy became the fourth country – joining Senegal, Trinidad and Tobago and San Marino – to deposit its ratification of the ICC Statute at the United Nations.

“Ratification by a country as important as Italy sends a clear signal that an overwhelming majority in the international community want this process completed as soon as possible,” says William Pace, convenor of the Coalition for an International Criminal Court, a grouping of non-governmental organisations.

Pace contended that another three or four countries were expected to ratify the statute this year and an additional 20 to 30 countries may deposit their ratifications in each of the next two years.

(Sixty countries must ratify the ICC statute before the Court can enter into force; to date, 83 countries have signed the statute, but 79 of that number still have to go through the ratification process.)

“This Court is going to happen, with or without the United States,” said Jelena Pejic, senior programme officer for the Lawyers Committee for Human Rights. Nevertheless, “I don’t think anyone can deny the importance of US support.”

Although even the Court’s supporters conceded that any US ratification of its statute was unlikely for several years, all sides were aware that US opposition to the Court could hinder its effectiveness.

Under its rules, the Court can begin operating after the UN Security Council refers a situation to it. Otherwise, it can only act after the Court’s prosecutor wins the authority from the state where a crime is committed, or from the state of origin of the suspected criminal or of the victims, to proceed.

Because of such requirements, Pejic pointed out, the United States could prevent the ICC from dealing with many cases simply by using its veto power in the 15-nation Security Council to block any Council referral of situations to the Court.

Meanwhile, the United States has tried several strategies to prevent the possibility that US nationals could be tried by the Court for actions committed in their official duties.

One US official, who spoke on condition of anonymity, said that the government has attached “understandings” to 28 mutual legal assistance or extradition treaties, in which the other nations involved would agree not to extradite US nationals to the ICC.

Other sources confirmed that several nations, including South Africa and Poland, have been negotiating bilateral treaties with Washington that would include the commitment not to allow any extradition to the ICC of US citizens residing in their countries.

Pejic said that “the legal validity of these understandings remains questionable because they are unilateral.”

Yet few experts doubted that Washington’s drive could, in time, prevent the Court from looking into any suspected misconduct by US military or intelligence officials.

More worrying to some human rights activists was the prospect that the United States – which has pushed for the current review to define the crimes to be tried at the ICC – would try to modify the ICC Statute to limit the grounds for prosecution.

US officials recently have tried to craft an exemption under which government officials could not be tried by the Court if their conduct stemmed from what was deemed to be “official acts.”

That doctrine in turn is opposed by other nations – including several European states – who have argued that Nazi war crimes and other atrocities could have fallen under such an exemption. As a result, few here expected a major re-examination of the ICC Statute during the coming weeks.

“Re-opening the treaty would risk unraveling the whole package,” Pejic argued. “It’s a delicate balance that would be disrupted… There is a line in the sand, and I think that a formal re-opening of the treaty will not be on the table.”