Crimes and conflicts

On the promise and potential pitfalls of the International Criminal Court.

ON July 1, the International Criminal Court (ICC) came into being. The first stage was crossed on April 11, 2002, after 66 states deposited their instruments of ratification with the United Nations. By June 27, seventy-one countries had ratified the ICC statute, well above the number of 60 needed to give effect to the statute. The universality of the crimes set out in the statute will mean that war crimes, crimes against humanity and genocide committed anywhere in the world will all be crimes within the understanding of the court. The court will exercise its jurisdiction only where either the state on whose territory the crime was committed, or the state of which the accused is a national, is a party; or where the Security Council refers a matter to it. And it will not substitute national courts, but be complementary to them - that is, where the national systems are unable or unwilling to deal with the crimes.

Only the states that have ratified the statute on or before July 2, 2002 will have the right to participate fully in the first Assembly of States Parties, which will be held in September 2002. The 18 judges of the court, and the prosecutor, are expected to be elected next January after the Assembly of State Parties decides in September this year the rules of procedure to select the judges and officers of the court, and determines issues relating to its budget.

Even before the court takes its first steps, the United States has begun its campaign to vilify it. Threats, both blatant and veiled, have accompanied this campaign in large measure. To begin with, the Bush administration threatened to 'un-sign' from the statute that Bill Clinton had signed on to just before he demitted office. But there is no procedure for un-signing. Moreover, in international law, when a country signs a treaty, even where there is no ratification, there is an obligation not to act contrary to the letter and spirit of the treaty. So, the Bush administration adopted a variant that it thought up to un-signing. On May 5, it addressed a letter to the U.N. Secretary-General to inform him that, "in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, ... the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty."

Meanwhile, the U.S. Congress currently has before it the American Servicemembers' Protection Act (ASPA), a law which would authorise the use of military force if U.S. citizens are held in the ICC in The Hague. The law, which has passed Senate scrutiny, advocates the use of "all means necessary" to retrieve its citizens from the court. This proposed law, and the fiery rhetoric around it, has proved to be a diplomatic embarrassment. The Dutch Parliament is reported to have endorsed unanimously a resolution expressing concern about what is also being referred to as the Hague Invasion Act. It has urged the Dutch government to take up the matter with both the European Union (E.U.) and the North Atlantic Treaty Organisation (NATO).

The response of the U.S. embassy in the Netherlands has been nebulous: "The ASPA provision grants an authority for the President to use all means necessary. It does not require or suggest that any particular means be used to address this issue. Should matters of legitimate controversy develop with the ICC's host-country, the Netherlands, we would expect to resolve these controversies in a constructive manner, as befitting relations between close allies and NATO partners. Obviously, we cannot envisage circumstances under which the United States would need to resort to military action against the Netherlands or another ally."

More recently, the U.S. has threatened to back out of peace-keeping missions unless its personnel are exempted from the ICC's jurisdiction. The U.S. wants the Security Council to endorse a blanket exemption from prosecution by any court other than its own for all peace-keeping missions, but the Security Council has so far refused to oblige. The U.S. is threatening to pull out its peace-keeping troops from Bosnia; the mandate expired on June 21. It has agreed to an extension only till the end of June pending a formal statement of immunity to forces engaged in peace-keeping. On June 30, the U.S. blocked a vote to continue peace-keeping operations in Bosnia, letting the peace-keeping mandate expire. Most of the members of the Security Council are opposed to the adoption of this disclaimer. But if Britain, which negotiated such a disclaimer on behalf of countries during the war on Afghanistan, were to change its position, there is no saying which way the decision might go.

Even as the ICC came into being, lawyers were busy setting up an International Criminal Bar to fill the vacuum in the defence, and to provide lawyers for witnesses and victims. Meeting in Montreal on June 15, the new body was endorsed by some 350 lawyers representing bar associations from 48 countries. Lawyers who have been working to establish the International Criminal Bar have drawn their lessons from the Rwanda and Yugoslavia tribunal experience. When these tribunals heard their first cases, the defence lawyers were inadequately organised, they say. There was a dependence on the registrar's office for routine needs such as access to an office or permission to travel for fact-finding. The existence of an International Bar Association would make a difference to the choice of counsel who would be available to the accused, and provide a support structure to attorneys practising in these courts. Reflecting the hybrid nature of the new court, where civil law and common law will be integrated, it has been proposed that the International Criminal Bar should speak for defence lawyers as well as the lawyers for witnesses and victims.

The problem of impunity has been an increasingly visible phenomenon, especially in the last quarter of the 20th century. It has been a period of incessant, and unpunished, bloodshed and those who wielded state power were either complicit in the crime or were the perpetrators themselves. It is also irrefutable that these crimes largely went unpunished. The difficulty in confronting the brutality that such regimes have unleashed on peoples has made prosecution a largely unworkable option, especially within states where the judicial system has broken down.

TRUTH commissions have emerged as a device to help deal with the violence that has rent societies. In Unspeakable Truths: Confronting State Terror and Atrocity (2001: Routledge), Priscilla Hayner writes about 20 truth commissions around the world. The South African Truth and Reconciliation Commission is the best known one. The Argentinean Commission, which investigated the 'dirty war' that the armed forces waged against the people between 1976 and 1983, and produced the report titled Nunca Mas (Never Again) is also known. But there have been many more. The Report of the Commission of Inquiry into Violation of Human Rights Findings, Conclusions and Recommendations (1994), the Final Report of the Investigative Commission on the Situation of the Disappeared, the Report of the National Commission on Truth and Reconciliation (1991) in Chile, the Report of the Commission in Chad (1992), the Si M Pa Rele (If I Don't Cry Out ...), which was produced by the Haitian National Commission for Truth and Justice (1996) are just some of the 20 that stand mute testimony to the scale and depth of the violations practised against the people within the state.

There is evidence too of international intervention in tackling the aftermath of crimes against the people. For instance, the Commission on the Truth in El Salvador (1993) was set up as a result of a U.N. brokered peace accord, as was the Guatemalan Commission which gave its report, Memory of Silence, in 1999. The International Commission of Inquiry in Burundi, which submitted its report in 1996, was created by the U.N. Security Council.

The scale of the crimes is horrific. Take the Guatemalan illustration. Hayner cites the commission as having registered a total of over 42,000 victims, including over 23,000 killed and 6,000 disappeared. "Ninety-three per cent of the violations documented were attributed to the military or state-backed paramilitary forces," she records. "Three per cent were attributed to the guerilla forces." The military juntas in Argentina, in the seven years that they held power from 1976, and in their hunt to eliminate communist "subversives" 'disappeared' an estimated 10,000 to 30,000 people - "arrested, tortured, and killed, the body disposed of so as never to be found, and the fate of the victim never known by agonised family members". These have not been exceptions.

Hayner's work demonstrates rather effectively that truth commissions almost inevitably accompany the change of a regime; and they invariably come with the compromises that a changeover often demands. The difficulties encountered in finding a way to deter such gross abuse of state power are patent in her narrative. The use of amnesty as in South Africa and in Sierra Leone, not naming the perpetrators as was part of the mandate in Chile, and not even revisiting the past as in Mozambique has meant that the guilty often roam free. Often, they have not lost their access to power, and a culture of impunity is discernible. In some jurisdictions, there is also an incapacity which dogs the judicial system, making prosecution a dubious possibility.

The ICC has come into being in the midst of these experiments with tackling state violence in situations where the state itself has been found to be largely responsible for, or complicitous in, crimes that cross high thresholds. The inequality of states in international politics lends its weight to impunity - an inequality that the U.S., for one, insists be allowed to remain. The deliberations on counter-terrorism that are currently under way in the Security Council, especially in the context of the extraordinary arming of the state that it legitimises, will have to be understood against the backdrop of these recent, recorded, experiences of state violence. While there are few who would question the need to deal with terrorism, the danger of selectively defining who is a terrorist, and conferring immunity on violations committed in the name of combating terrorism, will need guarding against, and the problem of impunity has to be located within this understanding.

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