Courting an International Criminal Court

Once again, the creation of an international criminal court is high on the United Nations agenda. The General Assembly has instructed a Preparatory Committee to draft a constitution for such a tribunal for consideration by high-ranking diplomats at a conference tentatively scheduled to take place in Italy in June 1998. Ever since the Nuremberg Charter and tribunals outlawed aggression, war crimes and crimes against humanity over fifty years ago, the international community has pursued the goal of bringing all such transgressors before the bar of justice. What will it take for nations to agree upon a widely acceptable text that will close a glaring gap in the world legal order?

1. The primary and most vital ingredient remains political will.

Nations should recognize that a more peaceful and humane world can only come about by replacing the force of war by the force of law. Small and poor nations have much more at stake than the rich and powerful. In our interdependent planet, the peace and well-being of each is inextricably linked to the peace and well-being of all. Outdated notions of sovereignty must not block acceptance of rules of the road needed to enhance the security of people everywhere by deterring wars of aggression, genocide and the horrible crimes against humanity that continue to deface the human landscape.

2. The need to compromise is essential.

Consensus is desirable, but to expect 185 nations of different social systems and stages of development to agree on all provisions of complicated legal proposals is to expect the impossible. Essential components for a fair and effective tribunal can certainly be found in the Nuremberg and Tokyo trial precedents, drafts by U.N. committees in 1952 and 1954, recommendations based on years of study by the International Law Commission, and statutes approved by the Security Council for the ad hoc tribunals dealing with crimes in Yugoslavia and Rwanda. There are thoughtful new proposals put forward by France, the United States, Canada, Australia, Japan, Egypt, Germany and other members of the European community as well as a dozen Caribbean states and a host of non-governmental organizations and expert legal institutions.

3. Have Confidence in the Judges.

One must assume that outstanding jurists chosen by many nations from different legal systems will have the intelligence and integrity to carry out the spirit of the law and operate the court in a fair and efficient way. Whether - as proposed - there be 18 judges or 24 or more or less and whether they sit for 9 years or some other period, is not decisive. Almost all drafts already contain basic requirements: defendants must be presumed innocent, have counsel of their choice, must not be tried twice for the same crime and be assured of safeguards for open and fair trials. An informed public and vigilant monitors of the budget serve as additional guarantors against judicial abuse.

4. Current legal challenges can be overcome.

Which crimes are to be subject to the jurisdiction of the court? Nuremberg listed only three: aggressive war, (the crime against peace) crimes against humanity and war crimes. These were unanimously affirmed by the General Assembly in 1946 when Genocide was added. They are considered binding "customary law". Some would like to broaden the list to include apartheid, terrorism, drug-trafficking, environmental degradations and similar offenses widely condemned by multi-national treaties. The majority seems inclined to defer such expansion for later consideration.

Some would not include the crime of aggressive war at this time. They argue that it is insufficiently defined and would involve the Security Council which may be influenced by political considerations. True, the UN Charter vests the Security Council with primary responsibility for ascertaining whether aggression has occurred, but individual guilt should only be determined after fair trial by an independent judicial tribunal. A detailed definition was reached by UN consensus in 1974 and adequate definitions appear in several recent drafts. Failure to include aggression (condemned at Nuremberg as "the most serious of all crimes") is to repudiate the Nuremberg principles. It undercuts the emerging rule of law and undermines progress toward an aggression-free and peaceful world.

Who can bring charges and start the prosecution? Complaints that the agreed laws have been violated should be welcomed from any responsible source. To prevent abuse, the Prosecutor should be required to have the allegations and supporting evidence reviewed by a pre-trial judicial body before being authorized to prepare for public trial.

Who has priority in trying the accused, is it a national state or the international tribunal? If a state is willing and able to deal with prohibited international crimes in its own courts, and does so in a fair and reasonable way, then there is no need for international adjudication. National courts have primacy and the international tribunal is subsidiary. The sad fact is that outrages such as aggression, genocide and crimes against humanity are usually committed with the complicity of a national government. If sham trials by such a government (or its allies) are to be avoided, it is essential that an objective international court step in to protect world society. It should be obvious that the international tribunal alone should decide whether it must take exclusive jurisdiction

Enforcement remains a problem. Without force, law is farce. Present drafts do not envisage an international criminal court with its own police or enforcement powers. Although the UN Charter called for an international military force to maintain peace, these mandates have not yet been honored. Consent by all five Permanent members is required before the Council can impose economic, military or other sanctions. Pressured by public outrage, the Council was able, in a few month's time, to approve statutes for ad hoc criminal tribunals to punish crimes against humanity in former Yugoslavia and Rwanda. It was an important stepping stone after Nuremberg. But the Permanent Five, for unstated political reasons, failed to create any enforcement mechanism. The result: some major criminals, accused of planning or supervising "ethnic cleansing" and mass rapes, have not been taken into custody.

Failure of powerful nations to provide adequate support to these ad hoc tribunals not only jeopardizes a permanent court, but mocks the memory of the victims and encourages more criminality.

5. Where do we go from here?

The goal is to move forward in Rome in the hot summer of 1998. If all goes well, decision-makers will not be accused of quibbling while Rome burns. Given the political will, a treaty can be signed by many states signaling their intent to move toward a more humane and peaceful world through law. How long it will take before nations will ratify such a treaty is an open question. There is always the hope that, if the traditional treaty route falters, the Security Council will decide to act quickly - as they have been able to do in the past. In the last analysis, everything depends upon the will of the public and its ability to communicate its desires to leading politicians and diplomats who have the courage to seize the moment in order to save the future.

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