International Criminal Court Launches Despite Bush Boycott

by Sanjay Suri

An agreement to set up an international court to try war crimes has been signed by 139 countries but ratified by only 89. These latter do not include many of the nations in conflict situations in which many cases for the court could arise.

Also, the International Criminal Court (ICC) can only take up cases against those accused of war crimes after July 1, 2002 when it came into existence legally. And it can only deal with cases where the accused is a national of a signatory state or if the crime took place in a signatory state. And no one is certain how the court hopes to enforce its orders.

The U.S. signed the ICC convention on Dec. 31, 2000 but then opted out. U.S. officials wrote to the ICC in May last year: "This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty."

U.S. officials say that participation in the ICC would expose U.S. troops to politically motivated cases and undercut anti-terrorism efforts.

China, Russia, India and Pakistan, Israel, North Korea, Iraq and most countries run by military dictatorships have opted to remain outside its jurisdiction. "But the only really prominent opponent is the Bush administration," William Pace, Convenor of the Coalition for the International Criminal Court, told IPS from The Hague. The coalition represents about 2,000 non-governmental organizations that back the court.

The U.S. ambassador declined to attend the inauguration of the court at The Hague in the Netherlands Monday. Under strong U.S. pressure, about 20 countries have signed immunity arrangements with Washington under which any complaints from them would exempt all U.S. citizens.

The U.S. is signing such agreements under Article 98 of the ICC's statute which allows signatory countries to refuse to hand citizens serving abroad to the court if doing so would clash with another international agreement. According to some reports the U.S. has threatened to cut off all assistance to nations that do not sign similar exemption agreements.

Russia and China, despite staying out of it, have been making "neutral or pro-ICC statements over the past two or three years," Pace says. There are also countries "in the middle of terrible conflicts who have joined," he says. These include the Democratic Republic of Congo, Afghanistan and Colombia.

In most cases the ICC is expected to take up cases that are referred either by the governments of countries that have ratified the agreement, or by NGOs and humanitarian organizations. But cases can also be referred by the United Nations Security Council and in such cases it makes no difference whether the government concerned has ratified the Rome agreement or not.

That means any referral by the Security Council could be subject to a veto by any of the five permanent members - the U.S., Russia, China, France and Britain. But that could change "if the U.S. determines over the next one month that in the future the veto does not mean what it used to in the past," Pace says.

Where its jurisdiction does run, the ICC will still not override governments and national court systems at will. Take the case of Britain, which has ratified the convention to set up the ICC. If Britain joins an attack on Iraq and a complaint is made before the ICC against British soldiers or its leaders, it would still be "only remotely" possible that the court will launch prosecution, Pace says.

"The court would tell the British government in such a scenario of the complaints it has received over war crimes, but the British could say they have a functioning legal system which would investigate the complaints and prosecute someone if necessary," Pace says. The ICC could step in only if such an exercise proves to be a sham and a way of shielding individuals who should be found guilty.

The ICC would in effect have to sit in judgement on the judicial systems of nations before it can begin to try individuals.

Whatever actions result would be likely only in the somewhat distant future. Pace anticipates three or four cases going forward over the next 10 to 15 years. "A lot of what the court can do has to be sorted out, it cannot be predicted," he says.

The court has already received hundreds of complaints even before it can begin dealing with cases. "But the court will not allow itself to be overwhelmed by frivolous referrals," Pace says.

Eighteen judges were inaugurated Tuesday this week. A prosecutor is due to be appointed over the next two months. That is a critical post because the prosecutor will decide finally what cases the court chooses to take up. There is much dispute at present over that appointment.

The court has got going with about 50 to 60 employees. But it will need about 200 employees for purposes of basic establishment. It will need 500 to 600 employees before it can begin dealing with cases. The tribunal to try war crimes in Yugoslavia needed 900 employees, the tribunal for Rwanda several hundred. Just setting up will take a year or two even with the fastest possible hiring of staff.

But the establishment of the court represents a "fundamental strengthening of the international legal order, despite the sound and fury over another impending war," Pace says.

"There has been progress in the development of law and justice at an international level over the last ten years," he says. "The development of international democracy in Europe over the past 35 years is as much a reality as Pax Americana."

The court represents a globalization of democracy, human rights and the rule of law, Pace says, and has in a sense joined "the race between democracy and the principle of might is right."

"The 20th century was the most violent in all of history and in this century so far that legacy is continuing. But the creation of this court has meant the creation of one of the greatest anti-war institutions in all of history."