THE INTERNATIONAL CRIMINAL COURT
UP and Running
by Beth K. Lamont
The Court officially came into being in July of 2002 when it reached the required number of ratifications by member states: 60, or two-thirds of the original signatories of the Rome Statute. Next came the election in February of 2003, by the Assembly of States Parties at the United Nations in New York, of eighteen judges from eighteen countries to serve the Court in various terms of 3, 6 or 9 years each. The judges have now formed themselves into working groups of Pre-Trial, Trial and Appeals Divisions, along with an official Registrar. The Court is now in residence at The Hague, in the Netherlands, and has at last come into its full operation with the selection of its Chief Prosecutor, Oscar Moreno-Ocampo of Argentina. Information regarding the Court and its structure can be found on its own Web site: https://www.icc-cpi.int/
Most of the 134 Nations of the UN are truly celebrating this long-sought accomplishment, and at present, 90 of these Nations have already ratified their commitment to the International Criminal Court. But in May of 2002, the United States surprised the world by doing something never before done in United Nations history. It un-signed a document! It backed out of its official commitment to the Court. This is especially surprising because the US purports to be a champion of international law, and had long been instrumental in the vision of and preparation for the International Criminal Court. It was an initiator of the Nuremburg trials and was instrumental in the tribunals for Yugoslavia, Rwanda and Sierra Leone.
But in July of 1998, when the US was actively engaged in negotiations in Rome for the creation of the Court, the US was not in agreement with many of the decisions that were being made by the States Parties as the document developed. The US voted for oversight and control of the ICC by the UN Security Council and failed. The US voted against an independent prosecutor and failed. It failed also in its insistence on capital punishment instead of life imprisonment only, and disagreed with the emphasis on restitution and monetary compensation that most of the other nations were advocating. Ambassador David Scheffer, the US representative to this historic meeting, left Rome refusing to sign the document.
In reporting to the US House Foreign Relations Committee, Scheffer stated that he feared the document would interfere with the US meeting its military obligations around the world, and that US service personnel might be vulnerable, in case of political manipulation, to prosecution under ICC war crimes charges.
No further action was taken for two years, but before leaving office, former President Clinton signed the Rome Treaty just before its deadline of December 31, 2000. Surely the thinking was that more influence for change might be brought to bear as a member Nation rather than as an outsider, but the incoming Bush administration did not agree, and fear of this new international body prevailed in their foreign policy rationale.
Not only did the United States back out of its commitment, but in a move that undermined the intent of the Court, it set about trying to coerce bilateral immunity agreements with as many nations as possible, requiring that they not extradite US service personnel in case they were charged by the ICC. The US has even punished reluctant nations by withholding previously promised military assistance. At this writing 36 bilateral immunity agreements have been signed but not necessarily ratified by those nations; 15 of them are ICC participants, and 21 of them are non-ICC participants. The US was so concerned about its vulnerability that it even sought and obtained from the UN Security Council special exemption for US Peacekeepers from possible prosecution by the ICC.
The US has good reason to fear prosecution by the ICC because as soon as the Court opened its doors for business on July 1, 2002 the Court began to receive accusations against the US. It is true that individuals and groups that are opposed to US policies, and have been unable to influence change within the administration, see the Court as a way of bringing world attention to these policies, seeking judgment from what they would like to promote as a higher jurisdiction.
Indeed, most of the Nations of the UN, as well as millions of anti-war protesters the world over, preferred to see the problems of Iraq, and its alleged weapons of mass destruction and its asserted non-compliance with UN inspectors, treated under existing international laws, and insisted upon giving the UN time to solve these issues without violence. This was before the earthshaking "shock and awe" of the US's own terrorist attack on Iraq in its March madness. It is ironic and shameful that for all of the US's previous advocacy of respect for international law, even seen as a model for newly emerging democratic Nations, it is now in the position of being seen as a lawless aggressor nation, and sadly, targeted for retaliation as such.
Another unintended consequence of the US's foreign policy, and its undercutting and exploiting of the UN, is that it has caused the UN to be targeted as well, as witness the bombing of its headquarters in Baghdad. The UN's prolonged sanctions against Iraq at the behest of the US, causing some to regard the UN as almost a tool of the US, is certainly not consistent with the UN's present stated mission of peaceful intent and of its humanitarian efforts to help return Iraq to normalcy.
Although the US apparently wishes to remain in charge militarily, it is finding itself in a more and more isolated position as far as its coalition is concerned, and finding also that support and money for its stated mission to promote democracy in Iraq is petering out. In addition to the UN presence, which has been shown to need its very own Protection Force, the US would no doubt appreciate even more international support. It needs help to carry out its heavy responsibilities for having caused such devastation to the Iraqi People, their health and their health care system, their environment, their infrastructure, their economy, and their ability to govern and police themselves. The US created idealistic but unreasonable expectations; it is now in a very awkward and unsustainable position.
US citizens, have usually thought of themselves as "the good guys," but are often oblivious to US foreign policy as seen by the rest of the world. We are the ones in the white hats, clearly identified as heroes, who come to others' rescue; we're supposed to save those who are in danger of disaster. Doubt is beginning to creep into the public discourse because of this administration's disregard for international law. Respecting the UN and respecting the International Criminal Court is the only way that confidence can be restored.
Interesting responses have been generated by citizens in the US despite their administration's reluctance to trust the ICC. Judges in some US court cases have begun to cite ICC standards in their domestic decisions. Defense lawyers practicing at The Hague's Yugoslav Tribunals are seriously objecting to a precedent-setting requirement that they now register with the US Treasury Department. This seems to be an attempt to control and prohibit US lawyers from defending clients at The Hague, and to locate and freeze the funds from which they might be paid. Another action intended to generate support for the ICC is the creation of a Victim's Trust Fund whereby citizens are asked to send $5 each to their representatives in Congress requesting that the money be set aside to compensate victims of war crimes. Clearly this shames Congress for its reluctance to take action in the matter of joining the ICC.
There seems to be adequate support for the ICC from all around the world. Celebrations commemorating July 17th 2003, the fifth anniversary of the Rome Statute, as World Day for International Justice were observed in the farthest corners of the globe. The Organization of American States issued an extensive resolution endorsing and welcoming the ICC into force. It further acknowledged that 26 member States of their organization had signed the Rome Statute and that 19 of those States had already ratified the Statute to become full fledged members of the Court.
The long awaited Court will not go unused or sit idle for a moment; even before the offices of Registrar and Chief Prosecutor were established, messages and complaints began to pour in. Reports of atrocities and violations of human rights flooded the Court, clearly indicating that populations around the world were suffering great abuse and desperately needed to seek justice by appealing to the Court.
Of the first 499 communications from 66 countries that came to the new Court, more than 100 of them were allegations against the US in connection with the war in Iraq. 70 of these appeals to the Court had originated in the US itself. Some accusations were related to the "war on terrorism" and the US treatment of civilian populations in Afghanistan. Most were accusations about civilian populations being targeted by the US in its invasion of Iraq. Many cited the use of cluster bombs and depleted uranium, both of which are immediate, as well as long-term, deadly threats to civilian populations. The use of fuel-air bombs that create giant fireballs over non-military targets was protested. Torture and inhumane treatment of prisoners was alleged.
After review by the Chief Prosecutor, Oscar Moreno-Ocampo, most of the complaints have been rejected, with the decision that they were outside of the Court's jurisdiction. 38 of the complaints against the US accused it of the crime of aggression, but until the term is defined at a future Assembly of States Parties, the crime of aggression does not yet fall within the jurisdiction of the Court. Of the accusations against the US, 16 of them related directly to acts allegedly committed by US troops in Iraq, but neither Iraq nor the US had become a Party to the Rome Statute, so that the Court has no jurisdiction over either of them at this time.
On the other hand, similar military actions by members of the coalition forces during the war in Iraq who are States Parties to the Statute will now be under review by the Court to determine the ability or willingness of those national authorities to treat, within their own judicial systems, these accusations of crimes committed. This is one of the important criteria for determining whether the Court has jurisdiction and has an obligation to become involved. The UK is accused of having allowed US bombers to use its air bases to launch raids that killed civilians. Is the UK likely to question the use of its air bases when this commitment was made by its own authorities in charge of joining the coalition? Hardly. What then? Is the Court going to charge the UK with war crimes? This scenario remains to be developed as the Court wades into uncharted territory.
Of all the communications, which came under review, the most clear-cut case of genocide, crimes against humanity or war crimes, falling within the jurisdiction of the Court, is in the charges against the Democratic Republic of Congo. The Court's Office of the Prosecutor is following the efforts of a new government in the Congo to control these atrocities. Of interest are the financial connections by organized crime, the arms trade, gold mining and the oil industry, which seem to fuel the warring groups that are vying for control. They seem to be even further enabled by the international banking system.
The previous government has been powerless to stop the bloodshed, with the police and the courts unable to investigate and prosecute these crimes of torture and execution, abduction, rape, use of child soldiers, and even accusations of ritual cannibalism. These charges are presently under investigation by the Chief Prosecutor having been requested to do so by the three pre-trial Judges of the Court.
In order for one to bring charges to the Court for its consideration there are certain formalities that are necessary to observe. An understanding of the Court's structure is needed as well. A helpful Victims' Guide To The International Criminal Court has been issued by the Damoclès Network, the legal arm of Reporters Without Borders. This over-100-page PDF document, available in English, French, and Spanish, can be downloaded from the Web site of the UN's Office of the High Commissioner for Human Rights Database On Human Rights Education And Training.
The guide was introduced at a news conference in Madrid by the well-known Spanish Judge Baltazar Garzon, who became a symbol of international justice when he issued a warrant to arrest former Chilean dictator General Augusto Pinochet. Judge Garzon asked that the guide be distributed world wide "as a useful tool so victims do not have to beg for justice but can demand it from those who have a duty to provide it." He said it would also help "to ensure that victims do not get lost in the maze of international justice."
As the new Court gears up to grapple with these new situations and complex decisions it is being hailed and celebrated by Nations and groups and individuals as a new hope for a world that may at some future time become peaceful and non-violent.
This is truly a powerful expectation, considering that our whole recorded history is dotted with intermittent war and atrocities. And for most of this history the perpetrators of crimes against humanity literally got away with murder, often flaunting their impunity. Now, at last, they will be punished.
To sum it up briefly, in the relatively short time-span of five years since the start of the negotiations that formed the Court, 90 Nations have ratified the Rome Statute and have become participants of the Court. Hundreds of appeals have come to the Court for its adjudication. The Court is up and running and is on full time duty. It bodes well for the eventual universal acceptance of, and respect for, international law. It's a matter of time. Peace and justice for the people will prevail.
This report has been compiled from Coalition for the International Criminal Court sources.
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At the time of writing, Beth K. Lamont, along with Mary Beaty, was the AHA's NGO Representative to the UN and a member of the newly formed, but now defunct, Council for Ethics Based Organizations. 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 "ICC Offers Promise—Without the United States", appeared in the November/December 2003 (Volume 63, Number 6) issue of The Humanist magazine (ISSN 0018-7399), published by the American Humanist Association, Washington, DC.
A previous article by the same author on the subject of the ICC appeared in the November/December 1998 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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