For an international criminal court

Print edition : August 01, 1998

More than a hundred countries agree on the fundamentals for an international court to prosecute war criminals and tyrants, but the final document cobbled together with compromises is less than many people had hoped for.

THE United Nations Diplomatic Conference of Plenipotentaries on the Establishment of an International Criminal Court adopted the statute for the establishment of an ICC on July 17 in Rome. When the Chairman of the Conference, Philippe Kirsch, said, "It is so decided," and brought down his gavel, it signalled the conclusion of a range of negotiations, which involved teasing out knots and hammering out compromises, to create a statute politically acceptable to an overwhelming majority of the participant states at the Conference.

The final tally, taken when the United States called for an unrecorded vote, found 120 states voting for the statute - seven states, including the U.S., China and Israel voting against, and 21 states, including India, abstaining.

The process of negotiations of the statute moved through consultations on the International Law Commission draft, to the six Preparatory Committee meetings where every article of the statute and every clause in every article was discussed and debated, to the Diplomatic Conference spread over five weeks when the final text was reconstructed and adopted. The challenge was in ensuring an independent and effective court even while accommodating the concerns of the states in an effort to find general acceptance for the statute.

The court, when established, is to try individuals accused of crimes of genocide, crimes against humanity, war crimes and aggression (once this crime is defined). While the purpose of establishing the court was to end impunity, deter such crime and provide redress to the victim, the focus in the negotiations was on any inroads that the jurisdiction and functioning of the court may make into the power and authority of states.

The issue of the jurisdiction of the court, central to the participating states' concerns, pursued the negotiations all the way. A German proposal for universal jurisdiction would have let the court try crimes detailed in the statute. The absence of state consent to the statute would not protect a person accused of a crime from prosecution. This was narrowed down by a Korean proposal, which made state consent relevant and gave the court the power to act where any one of four states - the state in whose territory the crime was committed, the state of nationality of the accused, the custodial state, or the state of nationality of the victim - had accorded its consent, making itself a state party. In a further compromise, the final text, as it was adopted, reduced the categories of state to the first two, thus requiring that either the territorial state or the state of nationality of the accused would have to be a state party for the court to assume jurisdiction automatically.

The related issues of complementarity and inherent jurisdiction was the subject of much debate and compromise. As it stands, national jurisdictions are the primary players in investigating, prosecuting and dealing with crimes, including the crimes over which the ICC is to have jurisdiction. It is when, generally stated, states are either "unwilling or genuinely unable" to prosecute that the ICC will acquire jurisdiction. This would make the ICC complementary to national jurisdictions, and not a super-national court. The power to decide the unwillingness or inability of a state has been laid at the door of the ICC.

United Nations Secretary-General Kofi Annan applauds as Italian Foreign Minister Lamberto Dini (right) displays the treaty document that created the International War Crimes Tribunal during the signing ceremony in Rome on July 18.-MARCO RAVAGLI/ AP

Citing national sovereignty as its concern, India, as also the U.S., advocated that an opt-in mechanism should allow states to decide whether the court should try a case. It was evident that both states were looking for ways to avoid the jurisdiction of the court, and that such an arrangement threatened to paralyse the court even before it was established. The proposal found few takers. There was some mention of it in a British proposal, which was retained as an option in a Bureau Draft which constituted the first package circulated early in the week ending on July 17, but it was at no point a serious contender for inclusion.

What has, however, got into the statute is a provision prompted by France. Euphemistically termed 'transitional provisions', this allows a state to opt out of the jurisdiction of the court in the matter of war crimes for a period of seven years from the date of its becoming a state party. This is a rather extraordinary concession. It also contradicts the position that the statute does not provide for reservations.

While India and the U.S. were at one about the opt-in option, in the matter of the Security Council they were far apart. Through the negotiations, it was patent that the U.S. was preparing to be a non-signatory while creating scope for wielding power over, and through, the court. Its efforts were therefore directed at making the Security Council a powerful player.

India, on the other hand, categorically opposed any role whatsoever for the Security Council. In his plenary address, the head of the Indian delegation, Dilip Lahiri, asserted that the setting up of an ad hoc tribunal for the former Yugoslavia did not constitute a precedent. In his Explanation of Vote delivered at the tail-end of the conference, he argued that the decisions to set up the International Criminal Tribunal for the Former Yugoslavia (ICTFY) and for Rwanda (ICTR) were of "dubious legality", and that the Security Council "did so in any case, and can do so again, only because its power cannot be challenged". This proposition does not appear to have found many supporters. The genesis of the statute explains, at least in part, the difficulties encountered in getting the Security Council to exit the statute. The ILC drafted the statute at the behest of the General Assembly and appears to have worked on the basis of the ICC being part of the U.N. system. The negotiations, however, found the statute being converted into a multilateral treaty independent of the U.N. though in a relationship with it; the relationship too would be negotiated by the States Parties to the statute.

The Italian Foreign Minister addressing delegates during the negotiations in Rome.-MARCO RAVAGLI/AP

There were also expectations that the U.N. would be asked to contribute financially to the establishment and running of the court. Moreover, one of the purposes of the establishment of a permanent court was to make the setting up of ad hoc tribunals redundant. If the Security Council were not to be allowed to refer matters to the court, it was wholly probable that it would continue with its ad hoc, ex post facto creation of courts, and that the funds of the U.N. would be diverted to the ad hoc tribunals rather than the ICC.

In the event, the statute now gives the Security Council the power to refer cases to the court, and such referral will confer jurisdiction on the court, rendering redundant questions of state consent redundant. Further, the statute also permits the Security Council to defer cases for a year at a time; this is not confined to cases it refers to the court. It is small consolation that this power of deferral is confined to matters of peace and security (Chapter VII of the U.N. Charter), and that such deferral has to be effected by a resolution by consensus of the five permanent members of the Council. What was averted was the vesting of any power in the Security Council to veto a case being prosecuted in the court.

THERE was a certain tentativeness about the debate on the inclusion of aggression as a triable crime by the court. Given that the Tokyo War Crimes trials convicted and sentenced to death persons for the crime of aggression, the argument that no acceptable definition of aggression existed in international law and that aggression should therefore be left out of the statute was unconvincing. The final text fashioned out a formula which recognised aggression as a crime within the court's jurisdiction, but only after a definition is chiselled out.

At one point in the proceedings, every argument seemed to stall on the question of the death penalty. Irreconcilable differences between countries that have outlawed the death penalty, including the Netherlands, Sweden and Norway, and those who have it as a part of their national law, including the Arab states and the island state of Trinidad and Tobago, resulted in what threatened to be an impasse.

At one point Trinidad and Tobago suggested that the death penalty be removed to a protocol or addendum to the statute so that it would not impact on the states participating in the statute. The final text does not have the death penalty. A declaration read out at the Conference, prompted by the Working Group on Penalties, attempted to clarify that "not including the death penalty in the statute would not in any way have a legal bearing on national legislation and practices with regard to the death penalty."

The Arab states and Trinidad and Tobago have spoken about the absence of the death penalty as having influenced their decision to stay out of the statute. Even Singapore, which otherwise played a constructive role through the process of constructing the statute, abstained from voting, citing the non-inclusion of death penalty as a negative factor in its reckoning.

THE inclusion of issues of gender created a flutter at the Conference. At the centre of the controversy was the inclusion of 'forced pregnancy' as a crime - a crime that can no longer be denied after the experience in Bosnia. The interpretation of this term as one that necessarily requires state policies of abortion in the case of women who have been forcibly made pregnant found the Vatican and the Arab states joining forces to have this provision deleted. The presence of the Women's Caucus, a part of the NGO Coalition for an ICC (which was, as was said in jocular seriousness, the largest delegation at the Conference), ensured that the crime was not cast aside in the midst of the deals being frantically negotiated at the Conference. The statute does recognise 'forced pregnancy' as a crime, and, while explaining that it means "the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law," goes on to clarify: "This definition shall not in any way be interpreted as affecting national laws relating to pregnancy."

Of India's two proposals to the Conference, one sought the inclusion of terrorism as a crime to be tried by the ICC, and the other wanted the use or threat of use of nuclear weapons to be included as a crime within the statute. The fact that India argued for opt-in jurisdiction for all crimes other than genocide (since India is already a party to the Genocide Convention 1948) seemed to take the punch out of the proposals. As a senior delegate intoned: "We (the Indian delegates) are ploughing a lonely furrow." Although the delegation made a case for the inclusion of nuclear weapons as a "point of principle" made by "a nuclear weapon state", it was almost uniformly dismissed as hypocrisy.

India has said that it will not be able to sign the statute. Yet, it is now becoming clear that even a non-state party may find its nationals before the court. The statute needs 60 states as parties in order to become operative. After that, it will become important to monitor the court to ensure that it is independent and that it functions in an impartial manner. There is a provision for amendments, or even for a Review Conference, seven years after the statute becomes operative. Clearly, there is work to be done.

Usha Ramanathan is a researcher on law.

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