THE INTERNATIONAL CRIMINAL COURT
by Beth K. Lamont
The foundation for the new International Criminal Court (ICC) was laid this Summer June 15-July 17 in Rome during five tedious weeks of suspenseful and intricate negotiations in six official languages among 162 nations, culminating almost miraculously in a signed draft document. The United States was one of the seven nations, including China, Iraq and Libya, which voted NOT TO SIGN.
If you wish to view the finished draft document in its entirety you can find it on the United Nations Web site. The URL is http://www.un.org/law/icc/. This report contains some highlights.
Because of its status as a Non-Governmental Organization (NGO) in relationship with the United Nations, the American Humanist Association was invited to Rome, along with over three hundred other NGO representatives who were attending as observers and informal participants. The present NGO Coalition for an International Criminal Court (CICC), formed in 1995 to promote its creation, was initiated by advocates, some of whom have been working toward the creation of this court before the UN itself was founded. Some of the groups forming the Coalition are: Amnesty International; Human Rights Watch; Lawyers Committee for Human Rights; Global Policy Forum; and the World Federalist Movement.
In a history called the "Road to Rome" roots for the court are placed in the 19th Century, when in 1872, Gustav Moynier, one of the founders of the International Committee of the Red Cross, proposed a permanent court in response to the crimes of the Franco-Prussian War. After the Nuremberg Judgment in 1946 there was renewed interest which resulted in the establishment of an International Law Commission (ILC), and an attempt was made at that time to create a Code of Crimes. In 1948 the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Many reports and drafts were prepared during the following years but the Cold War stymied all efforts.
Then in 1989 Trinidad and Tobago moved to resurrect the proposal for a permanent court. In 1994 the ILC presented a draft statute on an International Criminal Court (ICC) to the UN General Assembly. Then followed more years of Preparatory Committee meetings, attended by governments, international law experts, and NGOs. In 1996 Italy's offer to host an ICC Conference was accepted and the July 1998 date was set.
Prior to the scheduled Rome Conference another historical event took place that would have a great impact upon the creation of the court. In March 1998 a letter from US Foreign Relations Committee Chairman Jesse Helms to Secretary of State Madeleine Albright declares the International Criminal Court to be "dead on arrival" in the US Senate unless the US has veto control over the court.
How can the US, which purports to be "a nation of laws," be respectful of the law yet simultaneously above the law? The US position in the international community is subject to scrutiny. What must the nations which have expressed a willingness to subject themselves to the jurisdiction of the court think of the US's refusal to do so? What ever happened to our world leadership? Regardless of the US State Department's position, what are the wishes of the citizens of the US? This lapse in logic regarding the greater good for the many is an abiding mystery that perhaps only the US democratic process itself can solve.
Regardless of myopia in high places, it is reassuring to remember that we Humanists are in harmony with more than 150 nations of earth as is stated in our Manifesto II, wherein we acknowledge the need for the "development of a system of world law and a world order based upon a system of transnational federal government."
The founding document for the ICC which was created in Rome is not the one we supporting NGO observers had hoped to see created; we wanted much more. But it is a new beginning, and the tremendous endeavor was not abandoned in despair, as was feared at many seemingly insurmountable impasses. Many clashing concepts were ultimately compromised in the overriding wish not to fail. Questions were unending.
What will be the scope of this new International Criminal Court? What will it do? Where will it be located? Which crimes will it try? What will give it power, and will nations willingly accept the jurisdiction of the Court? When will it be in force? Who will have the right to bring charges? Who will its judges be and from which countries will they be selected? How can we trust their judgment? Will a nation willingly surrender to the Court one of its own citizens to be tried? Will the Court have jurisdiction over those nations which choose not to participate? What will constitute jurisdiction: the nation where a crime is committed; or the homeland of the accused; or the homeland of the victims? What penalties will the Court impose? Will there be capital punishment?
Each of these negotiating points was forcefully hammered out in the final fashioning of this long awaited document. Here are a few of the answers that were finally agreed upon:
The International Criminal Court "shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern."
"The Court shall be brought into relationship with the United Nations through an agreement to be approved by an assembly of States Parties to this Statute" and "the seat of the Court shall be established at The Hague in the Netherlands."
"The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of Genocide; (b) Crimes against Humanity; (c) War crimes; and (d) The crime of aggression." (Once the crime of aggression is defined). Crimes of terrorism and drug related crimes were adopted into the text in an annexed resolution, and would be subject also to the defining of the relevant crimes at a review conference in the future.
Lists of definitions in each of the first three categories of crime are spelled out in minute detail in this founding document. For instance, here follow a few selected definitions:
Article 6 Genocide, paragraph (c): Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
Article 7 Crimes against Humanity, paragraph (i): "Enforced disappearance of persons" meaning arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
Article 8 War crimes, paragraph 1(a): Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (then follows 56 definitions of war crime and acts of aggression).
What will constitute the power of this new Court? The issue is dealt with in Article 12 paragraph 1. "A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5." This is a whole new concept for a sovereign nation to consider. It means of course, the voluntary relinquishment of certain of its own powers, and it requires its willingness to abide by decisions of the Court. Even heads of State and military leaders are subject to the jurisdiction of the Court, and signatory nations are obliged to surrender their own citizens if charged.
Can this new Court bring charges for last year's terrorists acts? No. The court will try only crimes which occur after the jurisdiction of the Court has been established, and not retroactively. And how will it deal with suspected terrorists? And how will terrorism be defined? The inclusion of terrorism and drug related crimes was opposed by the US delegation, but overridden by the other nations. The rationale for the US objection being that the act of bringing charges is not the problem in these cases, but rather that it is the ongoing investigation of terrorism and drug crimes that poses the problem. The US argues that other agencies are better equipped for this effort. Well, of course. This is rather a circuitous argument in as much as the necessary investigative powers will be placed in the hands of the Court Prosecutor at some future time.
Will its penalties include capital punishment, an extreme measure to which some nations are adamantly opposed? No. There will be no death penalty. The moral argument is that you cannot condone the crime for which you are trying another person. The maximum penalty will be life imprisonment and for some, a maximum of 30 years imprisonment.
Some nations feel that such minimal prison time will make the Court a laughingstock in view of the gravity of the crimes to be tried. They insisted that executions were needed for a show of authority. Instead, the concept of reparation and compensation of victims has been emphasized. Provision has been made for a Trust Fund to be established for the benefit of victims of crimes and the families of victims. This is to be funded by fines and forfeiture of money and property.
And most crucial of all, who has the right to bring charges? Can the Mothers of the Disappeared accuse the suspected tormentors of their children and make their charges stick? Or must such charge be subject to approval by the nation in which the crime has occurred? Must the nation of which the accused is a citizen be a party to the treaty, or if it is not, must it give voluntary consent to the jurisdiction of the Court before the accused can be tried? Or of even greater concern, must all charges be funneled through and approved by the UN Security Council? Well, there's good news and there's bad news.
The good news is that there will be an Independent Prosecutor who has the power act on his/her own free will and take the initiative to investigate an alleged crime. This is called the principle of proprio muto, which being the wish of the majority of nations, prevailed, over the objections of the US.
But, alas, the bad news is that this authority can be curbed by the UN Security Council, which will have the right to delay investigation for a renewable 12 month period. And regrettably no provision has been made to protect any victims, or witnesses, or evidence during this time. How can it be in the best interest of all of the nations for such an disproportionate amount of power to be concentrated in the hands of only five nations?
In addition to the Office of Independent Prosecutor, the Court will consist of The Presidency, The Registry, a Pre-trial Division, a Trial Division, and an Appeals Division. These offices will be filled by 18 judges of high moral character, only one of whom may be nominated by each nation, and elected by secret ballot at an Assembly of States Parties. These persons shall "(i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or (ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court." Generally these judges will serve for nine years, and are to reflect an equitable geographical and gender representation.
All of the still unanswered questions will be resolved in time and with each new step in the development of the Court, but the remarkable accomplishment stands. Your Humanist representative was there during the process. The US delegation, alas, remained politely but extremely unapproachable to Humanist lobbying, and was itself obviously occupied with its own lobbying of third world nations. Humanist Manifestos which had been appropriately highlighted were placed in conspicuous places and as well, into every outstretched hand.
Although the document which is now referred to as The Rome Treaty is, and still will continue to be, available for ratification by the participating nations, the next official step, now that the draft document has been finalized, will be its review and its possible adoption by the UN General Assembly beginning in September of this year. Or perhaps instead it will be subjected to further negotiations. However, it will need to be ratified at some point by a necessary 60 participating nations in order to bring the new Court into force. At the time of this writing (September 22, 1998) 26 nations have already signed the Rome Treaty. Among these nations are France, Greece, the Netherlands, Spain, and Switzerland. Up-to-date information on the status of the Treaty is maintained by the NGO International Criminal Court Now [Update: Now known as the Coalition for the International Criminal Court] and can be found on The States Parties to the Rome Statute Web page on the ICC Web site. As of October 7, 1998, 53 nations have formally signed the document.
So where does the leading nation of the free world stand in this effort? The following paragraphs are quotes (italics are added only for emphasis by this writer) from the head of the US delegation to the Rome Conference and ambassador-at-large, David Scheffer, in his report to the Senate Foreign Relations Committee on July 23, in which he describes the US as "the most powerful nation committed to the rule of law," and he then proceeds to explain in great detail how certain objectives were not achieved, and why the US voted against the draft document:
"...First, while we successfully defeated initiatives to empower the court with universal jurisdiction, a form of jurisdiction over non-party states was adopted by the conference despite our strenuous objections. In particular, the treaty specifies that, as a precondition to the jurisdiction of the court over a crime, either the state of territory where the crime was committed or the state of nationality of the perpetrator of the crime must be a party to the treaty or have granted its voluntary consent to the jurisdiction of the court. We sought an amendment to the text that would have required both of these countries to be party to the treaties or, at a minimum, would have required that only the consent of the state of nationality of the perpetrator be obtained before the court could exercise jurisdiction. We asked for a vote on our proposal, but a motion to take no action was overwhelmingly carried by the vote of participating governments in the conference."
"We are left with consequences that do not serve the cause of international justice. Since most atrocities are committed internally and most internal conflicts are between warring parties of the same nationality, the worst offenders of international humanitarian law can choose never to join the treaty and be fully insulated from its reach absent a Security Council referral. Yet multinational peacekeeping forces operating in a country that has joined the treaty can be exposed to the court's jurisdiction even if the country of the individual peacekeeper has not joined the treaty. Thus, the treaty purports to establish an arrangement whereby US armed forces operating overseas could conceivably be prosecuted by the international court even if the United States has not agreed to be bound by the treaty. Not only is this contrary to the most fundamental principles of treaty law, it could inhibit the ability of the United States to use its military to meet alliance obligations and participate in multinational operations, including humanitarian interventions to save civilian lives. Other contributors to peacekeeping operations will similarly be exposed."
"...The treaty also creates a proprio muto or self-initiating prosecutor who, on his or her own authority with the consent of two judges, can initiate investigations and prosecutions without referral to the court of a situation either by a government that is party to the treaty or by the Security Council. We opposed this proposal, as we are concerned that it will encourage overwhelming the court with complaints and risk diversion of its resources, as well as embroil the court in controversy, political decision-making, and confusion."
"...Finally, we were confronted on July 17th with a provision that no reservations to the treaty would be allowed. We had long argued against such a prohibition and many countries had joined us in that concern. We believed that at a minimum there were certain provisions of the treaty, particularly in the field of state cooperation with the court, where domestic constitutional requirements and national judicial procedures might require a reasonable opportunity for reservations that did not defeat the intent or purpose of the treaty."
"...The US delegation also sought to achieve other objectives in Rome that in our view are critical. I regret to report that certain of these objectives were not achieved and therefore we could not support the draft that emerged on July17th."
Your Humanist writer holds hope that this world-shaking event, (almost totally ignored by the media, incidentally) that of nations willingly agreeing to abide by a law greater than themselves for the greater good of all, will be the dawning of a new, and long dreamed of, more Humanistic world.
Meanwhile the International Criminal Court is needed more every day. If the court had been in operation presently, and the US truly had obtained evidence regarding the recent August US Embassy bombings, it seems that it would have been the proper place to bring charges against the alleged terrorist conspirators for their wrongdoing, rather than for the US to engage in retaliation using unlawful aggression against sovereign nations. But, remember: the Rome Treaty wasn't built in a day.
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At the time of writing, Beth K. Lamont was the AHA's NGO Representative to the UN. Beth is presently an Executive Board member of and a Program Director for the Humanist Society of Metropolitan New York, the Corliss Lamont Chapter of the AHA, and is an initiator of the AHA's Humanist Advocate Program. She was Chair of AHA's Chapter Assembly, and has been involved with matters Humanistic for most of her years. She is currently a Humanist Chaplain and officiates wedding ceremonies in New York City.
A version of this article, under the title "Establishing an International Criminal Court", appeared in the November/December 1998 (Volume 58, Number 6) issue of The Humanist magazine (ISSN 0018-7399), published by the American Humanist Association, Washington, DC.
This article also appeared in Taking Sides: Clashing Views on Controversial Issues in World Politics, Ninth Edition (ISSN 1094-754X) (ISBN 0-697-39141-8), Edited, Selected, and with Introductions by John T. Rourke, University of Connecticut, published 2000 by Dushkin/McGraw-Hill, A Division of The McGraw-Hill Companies, Inc., Guilford, CT.
A follow-up to this article appeared in the November/December 2003 issue of The Humanist magazine and is available here.
The Humanist Society of Metropolitan New York (HSMNY) and the American NGO Coalition for the ICC (AMICC) have each prepared two-page flyers in support of the International Criminal Court. Both on-screen viewable and downloadable/printable versions are provided below.
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