Endorsement for ICC

Print edition : May 01, 2002

With ratification coming from the required number of states, the statute of the International Criminal Court will come into force on July 1, 2002 and the ICC will begin to function about a year later.

ON April 11, ten states deposited their instruments of ratification with the United Nations, bringing the number of states endorsing the establishment of an International Criminal Court (ICC) to 66. The ICC statute was voted in by 120 countries on July 17, 1998, at a Diplomatic Conference of Plenipotentiaries in Rome. Seven countries voted against the statute, while 22, including India, abstained. The overwhelming support for the statute, especially the implicit acceptance of universal jurisdiction and the inherent power of the court to decide when and in which cases it should act, surprised many observers. The statute needed 60 ratifications, and there were those who expected that it would take decades to reach this number. It is perhaps a sign of the times that in a remarkably short span of less than four years this document found more than the requisite number of states to ratify it. It will come into force on July 1, 2002. The ICC will start functioning about a year later.

The establishment of the ICC is a significant step forward for international law. The crimes that the court is to have jurisdiction over have been delineated in the statute. They include genocide, war crimes and crimes against humanity. 'Aggression' will become a triable crime once its definition has been debated and voted into the statute. It is not States that will be up for trial before the ICC, but individuals. The court will, however, have jurisdiction in the state where the conduct in question occurred, and the state of which the person accused is a national, as long as these states are party to the statute. Even where a state is not a party to the statute, it has the option of accepting the exercise of jurisdiction by the ICC with respect to the trial of a particular crime. Also, the Security Council may refer any matter to the ICC.

The representatives of 10 countries, led by the U.N. Ambassador for Bosnia and Herzegovina, depositing their instruments of ratification of the ICC statute at the United Nations in New York.-PETER MORGANE/REUTERS

The ICC is not intended to replace national criminal courts. The principle of complementarity has been woven into the statute; that is, the ICC will only complement the efforts of national courts to bring criminals to trial and justice. However, when a state is unable or unwilling to investigate or prosecute a crime, the ICC will assume jurisdiction. Shielding a person from criminal responsibility, the absence of impartial or independent proceedings, or even a delay that may defeat the purpose of bringing a person to justice could constitute 'unwillingness'. It has been perceived as a matter of countering impunity.

The thresholds are also rather high, and the jurisdiction of the ICC is "limited to the most serious crimes of concern to the international community as a whole". To be tried by the ICC, 'crimes against humanity' would have to be "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". War crimes, to be tried by the ICC, would have to be committed "as part of a plan or policy or as part of a large-scale commission of such crimes". Significantly, the ICC will even have jurisdiction over cases of armed conflict that are not of an international character where, for instance, serious violations of the 1949 Geneva Conventions are perpetrated "against persons taking no active part in the hostilities".

The 20th century was witness to much that falls within these definitions. Yet, whether it is the Pol Pots or the Pinochets, or the military juntas, that gave rise to victims' groups such as the Mothers of Plaza del Mayo in Argentina, the repression in East Timor or the war in Vietnam, the perpetrators of unspeakable atrocities have gone unpunished, largely because of the shield of sovereign power behind which they took shelter. The ICC now offers the possibility to prosecute these criminals.

The ICC has certain significant segments that will inevitably influence law as it develops in different national jurisdictions. There are the definitions of crime that expand the understanding of what constitutes crime into areas that have not been considered thus far. "Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity" have, for instance, been categorically acknowledged as crimes against humanity - a veritable victory for the Women's Caucus that has battled long and hard to have it recognised. The statute also provides protection for the victims and witnesses who participate in the proceedings.

The ICC is to establish principles relating to reparations to victims, which will include restitution, compensation and rehabilitation. A Trust Fund is to be established by the decision of the Assembly of States Parties for the benefit of the victims of crimes and their families. This recognition of the victim, and of victim protection and reparation, are largely underdeveloped in many national jurisdictions, and the experience in the ICC could aid in shaping the treatment of the victim. More generally, to quote Kofi Annan, the Secretary-General of the United Nations, who addressed the Committee on Human Rights a day after the requisite number of ratifications had come in: "Over time, I believe the practice and procedure of the court will provide a benchmark of international justice, against which the standards of states can be measured."

Through the process of constructing the ICC statute, the Indian government has consistently haunted the margins of the deliberations (Frontline, August 14, 1998) Till recently, Indian human rights groups were dismissive of the potential of international institutions in punishing, or deterring, criminals. But Gujarat has changed that attitude. The incitement, instigation and active engagement of persons in power in the atrocities practised on the people of Gujarat have given a new meaning to impunity in the Indian experience. It is not that riots and violence inflicted on people are a novel experience. But the open support of majoritarian forces, and the blatant regime of threats emanating from a senior police officer in Gujarat, the Chief Minister and even the Prime Minister - apart from the constituents of the Sangh Parivar - threaten to reward the criminal and to make democratic spaces an irrelevance.

It is not, of course, that the ICC can actually help deal with punishing the guilty of Gujarat. For one, victims' groups and human rights organisations are even now moving the courts to stem the violence, force investigation into the continuing carnage and launch prosecutions against those who have been identified as the killers and violators. The Indian judiciary is to have its day. It is only if the system fosters impunity, by inability or unwillingness, that the international judicial mechanism will come into its own on the issue. Further, India is not a party to the ICC statute, and the therefore the matter will not be within the jurisdiction of the ICC unless the Security Council can be prevailed upon to refer the crime to it. And, the ICC will only deal with crimes committed after it is set up; that is, it does not have retrospective relevance. Nevertheless, the aggressive abuse of position and power to further a majoritarian agenda, protected from punishment by politically constructed power, has given international instrumentalities a new-found credibility.

THE special authority that the Security Council has to trigger prosecutions as well as to have prosecution deferred for 12 months at a time makes the position of the permanent five members of the Security Council especially significant. While China has stayed clear of endorsing the ICC, Russia signed on September 13, 2000, but is yet to ratify; and France and the United Kingdom have both signed and ratified it. The U.S., however, is playing a cat and mouse game with the ICC. Throughout the deliberations, the U.S. tried every trick in the book to prevent the statute from gaining ground. Diplomatic channels were employed to warn friends and allies that they could expect to be punished if they supported its establishment. In a volte-face, among the last acts of his administration, Bill Clinton signed on to the statute on December 31, 2001. But President George Bush has been speaking of 'un-signing' - a process not familiar to the practice of international law. Senator Jesse Helms has been pushing for legislation that will stop the U.S. from cooperating with the ICC and punish its allies if they work with it.

This should come as no surprise. Bush has consistently opposed virtually every international treaty and agreement that has come his way: the Kyoto Protocol to reduce greenhouse gases; a global agreement to curb the illicit sale of small arms; the Biological Weapons Protocol; the Comprehensive Test Ban Treaty (CTBT) and the Anti-Ballistic Missile Treaty. Perhaps this can be explained by what Michael Ignatieff calls American exceptionalism. In explanation, he offers five elements to this exceptionalism: exemptionalism, where America exempts itself from international agreements that other allies have signed; simple non-compliance; non-ratification of signed treaties; rights narcissism, or an indifference to the jurisprudence of other countries, derived from a sense of the superiority of the American legal tradition; and a distinctive rights culture in contrast with the appearance of a common rights identity that the West presents to the rest of the world. The 'un-signing', if it happens, will constitute another dimension of this exceptionalism.

Now that the statute is in force, the Assembly of States Parties is expected to meet between September 3 and 13, 2002, to discuss the rules and procedures for the nomination and election of Judges and the Prosecutor. The Prosecutor is in a position of some considerable power, especially in the context of the power to "initiate investigations proprio motu on the basis of information on crimes" that fall within the jurisdiction of the Court. Countries that ratify by July 2, 2002 will have full voting rights at this first meeting of the Assembly of States Parties. Countries that take a while longer but ratify by October 1, 2002 will be eligible to nominate a Judge to the court. Elections are expected to take place during the second meeting of the Assembly of States Parties in January 2003.

The ICC presents an opportunity to deter, through punishment and threat of punishment, mass violations of human rights and humanitarian law. The violations that have been witnessed since the Second World War are too gross to be ignored; and it cannot be honestly claimed that leaving it to states to deal with the violations in their own jurisdictions would suffice. All too often, it is those holding state power who have been the violators. Elsewhere, safe havens have put criminals beyond the reach of the processes of justice. It is not that the ICC is an answer to the many injustices that have unfolded in the past 50 years. But, a carefully crafted ICC, worked with wisdom and responsibility, could make the comfort of impunity a thing of the past.

Usha Ramanathan is a New Delhi-based researcher in law.

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