RIGHTS: US Opposition May Cripple ICC

By Farhan Haq Reprint | | Print |

UNITED NATIONS, Feb 24 1999 (IPS) - Continued U.S. opposition to an International Criminal Court (ICC) may hinder efforts to define the workings of the Court, say worried human rights activists.

The United States was one of only seven governments, including Iraq and Libya, to vote against the creation of the ICC at a conference in Rome last July. But 120 other nations favoured setting up a court to try war crimes, genocide and crimes against humanity.

Yet Washington had presented a preparatory commission underway here with proposals to define crimes to be tried by the ICC which, some activists claimed, were so restrictive that the Court could never function properly.

Jelena Pejic, senior programme coordinator for the Lawyers Committee for Human Rights, noted that a U.S. proposal discussing elements of crimes asserts that genocide requires that a group of people were killed or harmed “in conscious furtherance of a widespread or systematic policy or practice aimed at destroying such a group.”

Such a definition, she argued, “would make it practically impossible to prove that genocide has been committed”.

The trouble with the language of the elements – intended to advise ICC judges in their work – is that it raises the bar by requiring evidence of a conscious plan and “systematic”, or repeated, acts, Pejic said.

By contrast, previous definitions of genocide focused solely on the intent to “destroy, in whole or in part, a national, ethnic, racial or religious group, as such.”

“They have created a crime that is not legally provable,” argued Mona Rishmawi, director of the Geneva-based Centre for the Independence of Judges and Lawyers, of the U.S. elements for genocide. “It is only a crime on paper.”

The U.S. definition of genocide was not the only problem with the elements it has presented to the preparatory commission, due to conclude two weeks of work Friday.

The U.S. paper would count as genocide any effort at transferring children below the age of 15 forcibly; but Pejic noted that the Convention on the Rights of the Child defines a child as anyone under the age of 18. The U.S. paper restricted some definitions of war crimes in ways that some rights groups believed was a step backward from existing legal norms.

The U.S. elements for war crimes would not include the use of biological experiments on prisoners, as long as the prisoners had declared consent; nor would U.S. proposals allow for the killing of fleeing prisoners of war to be treated as a war crime.

Pejic contended there was a “systematic pattern to shield U.S. nationals from the ICC.”

Washington has made no secret of its distaste for the Court.

During the Rome conference, U.S. diplomats tried unsuccessfully to ensure that the Court could only act after first receiving referrals from the U.N. Security Council – where Washington held veto power.

After efforts to limit the Court’s powers failed, David Scheffer, head of the U.S. delegation at Rome, warned that the White House might “actively oppose” the ICC.

Richard Dicker, associate counsel for Human Rights Watch, warned this week that, as part of that opposition, Washington may be willing to issue a protocol intended to address its problems with the Court. “A protocol aimed at fixing what the United States objects to in this treaty could unravel this complex document,” he said.

However, William Pace, convenor of the Coalition for an International Criminal Court, doubted that the White House will ultimately issue any protocol attacking the lengthy and intricate ICC statute.

“The truth is that there has been a division between the State Department, which has generally supported the treaty, and the Pentagon, which has opposed it,” Pace said.

“There has been a Jekyll-and-Hyde approach from the United States to this treaty” ever since President Bill Clinton voiced support for the Court’s speedy creation several years ago, he added.

U.S. doubts over the Court, aided by the ire of Congressional Republicans to the creation of any powerful international legal body, in effect passed leadership on the issue to other countries.

Dozens of European, Latin American and African nations – active in a “like-minded” group that pushed through the ICC statute last year – had stuck together in being wary of the current U.S. proposals.

Two members of the group, Switzerland and Hungary, have come out with their own list of elements which contrasts sharply with the U.S. proposals. Rishmawi argued that most of the countries debating the elements have favoured the Swiss-Hungarian proposal, with only the United States, Israel and to some extent Britain approving the language of the U.S. elements.

For example, Rishmawi said, the Swiss-Hungarian language forbids biological experiments on prisoners “even with the consent of the victim.”

Their submission also condemned as a war crime the “extensive destruction of property” caused without “military necessity.”

The U.S. language, she noted, did not consider such destruction to be a war crime as long as it served a “military objective” or “military purpose”.

Ultimately, governments likely would combine the various proposals together and, Rishmawi predicted, Britain could even help to bridge the gap between the hard line views in Washington and those of other nations.

The discussion on elements of war crimes will continue at the preparatory commission’s next session, which begins here in July. The commission is supposed to prepare drafts on the ICC’s elements of crimes and rules of procedure by Jun. 30, 2000.

At the same time, governments are trying to secure at least 60 ratifications for the ICC statute so the Court can enter into force. Currently, Pace said, 75 nations had signed on to the Court, while one, Senegal, had ratified the statute.

About 15 other nations had begun efforts to ratify the treaty, he added.