International Court Could Try U.S. For War Crimes

by Nefer Munoz

The International Criminal Court (ICC) is qualified to handle cases of war crimes, committed by individuals, that have been referred to it by the United Nations Security Council, Odio, vice-president of the ICC, said an exclusive interview with IPS.

The ICC, presided over by Canadian Judge Philippe Kirsch and formally inaugurated on March 11, was created to prosecute cases of genocide and war crimes when no national court is able or willing to do so.

It has the competence to try crimes against humanity committed after July 1, 2002, when its founding treaty, the Rome Statute, went into effect.

However, the treaty has only been ratified by 89 countries. Still outside the jurisdiction of the ICC are the United States, China, India and Indonesia -- the four most populous countries in the world -- and Iraq, Pakistan, North Korea and Israel, as well as most nations ruled by military regimes.

The administration of George W. Bush justified its decision to revoke the 1998 signature of the Rome Statute by Bush's predecessor, Bill Clinton, on the argument that falling under ICC jurisdiction would expose its troops abroad to politically motivated prosecutions, which would undermine the U.S. "war on terrorism."

Eighteen judges -- 11 men and seven women -- are sitting on the ICC, which will operate in The Hague. The four magistrates representing Latin America and the Caribbean are Odio, RenŽ Blattmann from Bolivia, Silvia De Figueredo from Brazil and Karl Hudson-Phillips from Trinidad and Tobago.

Q: What crimes committed in the U.S. war against Iraq will fall within the competence of the ICC, given that it lacks jurisdiction over the citizens of both countries?

A: I can only answer that in theoretical terms ... The UN Security Council, in theory, has the authority to send the ICC cases of war crimes committed in this conflict or any other.

When the Security Council believes global peace or security has been endangered, it can refer cases to us, independently of which countries are involved or if they have or have not ratified the Rome Statute.

Q: What impact will the U.S. decision to attack Iraq without UN approval have on international law?

A: All actions carried out outside the framework of the UN General Assembly or Security Council bring damages, but that does not mean the United Nations or international law will disappear.

This is not the first time that a country has acted outside the legal order or has failed to follow a multinational mandate.

Q: What does the launch of the ICC mean for the world?

A: As UN Secretary-General Kofi Annan said the day we were sworn in, it awakens hope for justice and can be seen as a contribution to peace.

Q: What do you think is the main strength of the new court?

A: The ICC's strength lies in the fact that it is the result of an effort by nearly 200 countries represented by their governments, which reached a consensus in Italy in 1998. There is a broad view accepted by all that the worst and biggest crimes must be tried.

The Rome Statute was approved by more than 100 countries, with only seven voting against it, and so far it has been ratified by 89. I would say that the large number of ratifications occurred in record time.

Q: How has the ICC taken the criticism set forth by some human rights organizations regarding the alleged lack of experience of the judges chosen to sit on the court?

A: I would say that the 18 judges were chosen based on criteria of excellence. The selection was carried out by mixing judicial experience with academic, diplomatic and juridical experience. In my view, an excellent balance was achieved.

I consider the criticism unfounded, because the Rome Statute itself states that magistrates from different branches should be chosen, with some specialized in penal procedures, others in humanitarian law, and yet others in international relations.

Q: Doubts about the efficacy of the ICC have also been raised, with respect to its economic limitations and the resources it has been assigned.

A: I must say that is also a baseless criticism. Nearly 10 years ago I was one of the first judges working on the war crimes tribunal for the former Yugoslavia.

Just imagine: there were only 11 judges with a support staff of five, and we didn't even have our own building. Today, that tribunal has around 1,500 officials. So the fact that the ICC is starting out with 40 or 50 employees does not appear to me to be a disadvantage. On the contrary, I see it as a strong start.

Q: Do you believe the absence of countries like the United States, China or Iraq could be the ICC's major Achilles' heel?

A: For the ICC to be truly universal, all countries must accept its jurisdiction. The fact that many have not adhered to the Rome Statute shows that there is work to do to rectify that.

That the United States, the world's leading power, is outside the ICC is certainly a problem, but we have to make it clear that this is not going to keep it from beginning to function. With a little patience, the ICC will become universal.

Q: What is your view with regards to the bilateral agreements that Washington has signed with 21 countries exempting U.S. troops deployed in their territories from ICC jurisdiction?

A: I cannot comment on that specific point at this time. It is an issue that we may deal with in the ICC, and for that reason I cannot venture any viewpoint.

Q: When will the ICC begin to work on specific cases?

A: As soon as the ICC prosecutor, who will be selected in April, has prepared them.