Against all the odds

Genocide, ethnic cleansing and unparalleled strife -- just some of the 20th century's worst crimes that the International Criminal Court will seek to adjudicate? Soha Abdelaty examines the challenges facing the newborn institution
On 11 April, human rights activists around the world celebrated the birth of a new era in the protection of human rights. But even in the midst of the festivities they knew that the activation of the International Criminal Court (ICC) was only the beginning of a long struggle against the many forces fighting to destroy its achievements. The human rights community faced its first challenge just over a month later. On 6 May, the United States renounced its signing of the 1998 Rome Statute that was the legal basis for the court's establishment.
The ICC is considered a landmark in the struggle to eradicate the worst crimes committed against humanity. It is meant to try individuals for war crimes, crimes against humanity and crimes of aggression. Its precedents go back as the Nuremberg trials, established by the allied powers in the aftermath of World War II for trying Nazi soldiers. Since then, however, there has been no autonomous permanent body responsible for punishing the perpetrators of these crimes. The ad hoc tribunals in Rwanda and former Yugoslavia were only the first limited steps taken in that direction. The efforts of human rights activists around the world finally bore fruit in a 1998 conference in Rome, following which the Rome Statute was open for signing and ratifying. Last April 66 countries ratified the treaty, surpassing the 60-country prerequisite for such a body to come into force. The court will begin proceedings in July.
That it took 50 years for this idea to finally be formulated is an indication of the many impediments the project has faced. Now, even after the court has become a reality, it still faces several obstacles, of which US opposition appears to be the most significant. By renouncing its signature and refusing to ratify the treaty, US officials and soldiers will remain beyond the court's jurisdiction. Nevertheless, a state party can request that this American soldier be tried at the ICC if he committed crimes on its territory. And even if he did not commit the crimes on its territory, it should try him in its own domestic courts, as dictated by the principle of universal jurisdiction enshrined in the Rome Statute. Universal jurisdiction is an obligation placed upon states to prosecute a person regardless of where the crime is committed or against whom. The official reason behind the US administration's unilateral decision is that it is seeking to protect the troops it has posted in various countries around the world. "Their renunciation is their way of saying: we don't like the fact that this court will apply to us even though we didn't ratify the treaty," William Pace, who convened the Coalition for an International Criminal Court (CICC) told Al-Ahram Weekly.
The Bush Administration also presented to both Congress and the Senate a draft legislation titled the American Service Legislation whereby the US government can interfere militarily in any country where a US soldier is being held captive with the intention of sending him on to the Hague to be tried. According to the draft law, should American lawmakers not get hold of their man at this stage, the US army can then invade The Netherlands and stop the court's proceedings.
The US position has been consistent since 1998; it only signed on in December 2000 to make sure that it can still be an active member in the negotiations leading to the court's establishment. Secretary-General of the Arab Coalition for the Independence of the Judiciary Nasser Amin told the Weekly that the US delegation in Rome took the whole matter quite lightly. According to Amin -- who was present at the negotiations in the capacity of the ICC's Middle East representative -- the head of the US delegation there "told us: the court will not see the light of day unless it responds to the demands of a unipolar court."
Amin continues: "This was met by strong opposition from the international community which made the US retreat from its policy stance and made it realise that it is better to be inside the proceedings than to remain outside." Having failed to sabotage the establishment of the court, the US is now launching a campaign aiming at preventing the new system from expanding. Although initial US efforts have largely been unsuccessful, many fear the new US initiatives. "When the US launches a campaign against the court, the rest of the countries, aside from being concerned that the US will not answer the court, also fear the US," says Hammami Ayachi of the International Federation for Human Rights in Tunis. These countries "give in to its pressure out of their need for (US) assistance and can thus be discouraged from joining the court," he continues.
In addition, the present impasse raises the question of how many countries will actually be willing to hand in American soldiers -- even proven human rights abuses perpetrators -- given the threatened repercussions? "When US soldiers go into a country, they enter it in a position of power. I cannot imagine that a US soldier will be arrested in Kuwait or Saudi Arabia for example," Ayachi tells the Weekly. The US is also likely to become the first place of refuge for any individual escaping the criminal court, Ayachi adds.
But others believe that there remains a ray of light in this murky scenario. "Even without the direct threat of transferring the US national to the court, the fact that they can be accused of these crimes has an impact on policy leaders. It will have a very strong deterrence impact," Pace argues.
Amin argues that any US official who has been accused and found guilty will be limited in his travel plans, especially to countries that have ratified the treaty. Amin continues that the European states which were at the forefront of the campaign in favour of the court firmly believe in the ideal that the court stands for. "Just as there are political interests between states, there are also cultural considerations and a reputation for judicial impartiality that no European country would sacrifice for the sake of an economic interest," Amin says. He adds that an independent judiciary in these European countries can have a significant effect on their governments' decisions, as in the case against Israeli Prime Minister Ariel Sharon in Belgium.
The US, despite being a heavyweight in the international arena, is not the only country opposing the ICC. China, Russia, Israel and several other Arab countries, with the exception of Jordan, have so far refused to ratify the treaty. It is this intransigence that leads many to predict that the court's scope will be narrow in its initial years. "I don't think we should underestimate the importance of the Rome Statute or of the creation of this new permanent court," says Pace. "At the same time, we shouldn't exaggerate what it will be able to do, especially in its early years," he adds.
"There will be many countries that are unsure whether this is what they want to see happen, so it's likely that it will demonstrate its effectiveness in relatively non-controversial areas -- where there's a disaster or in conflicts such as those in Liberia, Sierra Leone, Rwanda and even former Yugoslavia," Pace says. "In those clear-cut cases, I think that the court can be a very effective tool. In the cases where there's a conflict, like in the Middle East... anywhere where there's a border dispute... it will be less easy," Pace concludes.
Although the international community has waited 50 years for the idea to be formulated, its implementation took only three years, something that caught many countries around the world by surprise. "Most of the Arab countries used to make fun of the NGOs. They would tell us: meet us in 2060, when the court finally comes into force," remembers Amin. Even before the court came into being, observers noted that the human rights situation around the world had started to improve. "We've already seen a much greater respect for the laws of war by NATO member states in Yugoslavia and by the US in Desert Storm and even in Afghanistan," says Pace. "I remember the way the US military conducted operations and its intelligence in Asia in the Sixties and Seventies, as well as in South America and in Africa. Already, the fact that there's this international legal system and a permanent court has had an impact... It's a very important step forward," he adds. By September, 70 to 75 states are expected to have ratified the treaty and, within three to four years, this figure is likely to reach 100.
The court's significance lies not only in its numbers and the rapidity with which it has come into being but also in the new elements it has added to combating crime. For starters, the court deals with clearly defined offences. It also does not recognise any immunity; so any state official can be tried even if he is still in power. Finally, it is independent from all countries -- even the United Nations. The UN Security Council has the right to refer cases to the ICC but it cannot stop the court from dealing with a case. The only exception to this is when the crime is one of aggression, in which case the court will desist from looking into the case for 12 months. The member states have yet to iron out completely this particular clause and it may be modified in the future. The other two means by which a case is brought to the court's attention is through a member state or the general prosecutor's office.
With all the challenges that it has met and is still expected to meet, the court nevertheless is and will continue to be an important step forward. The next few years will be crucial in determining how much of a success it will be. "We are at a cross-roads," says Pace. "We've come from the bloodiest, most war-ridden century in all of history. Now we're in a period in which we're going to see whether human beings are going to be able to live according to justice and the rule of law, or whether we will continue with these conflicts," he concluded.
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