Crunch time for ICC

OneWorld, 26 May 1998

The crunch time for the setting up of a permanent International Criminal Court is fast approaching. Six meetings of the Preparatory Committee, the last one finishing in early April, have ironed out many of the difficulties and sensitivities. But the decision-making Diplomatic Conference, scheduled for 15 June to 17 July in Rome with the possibility of representatives of 185 UN Member States being present, will certainly need to be diplomatic. The UK has contributed to a special fund to enable the smallest, poorest countries to be represented. This first major structural addition to the UNs repertoire in 53 years (and the idea has been on the UN agenda for the same period) needs to be truly the will of the international community. Tony Lloyd, FCO Minister of State, will speak in the role of EU Presidency.

Even the procedures of the meeting will be fought over. The USA and a few others want 50% of states registered - rather than the more usual states present and voting - to agree for procedural matters and two thirds (ie 124 countries) similarly for matters of substance. This proposal would make it virtually impossible to reach any positive decisions, apart from precious conference time spent discussing it.

The Court is to try individuals for serious human rights abuses. All are agreed that includes genocide, crimes against humanity and war crimes. Definitions are always a problem but genocide is defined in the UN Convention and the other two are largely covered by the Red Cross Conventions. Many states want to see rape and other sexual crimes explicitly included as war crimes and special procedures set up for dealing with cases involving children and gender-based violence. But what about aggression? What counts as? Some argue that the Security Council should decide if aggression has been committed but the role of the Security Council is already the main bone of contention. because of the issue of the independence of the Courts prosecutor. Should he/she be able to initiate proceedings on the evidence of individuals or non-governmental organizations or only at the instigation of the Security Council (and some States are opposed to it having even that amount of involvement) or a State? A controlling role for the Security Council risks political interference and the use of the veto and could be fatal.

Other issues which some countries would want included revolve round recruiting children under 18 for armed hostilities. Is this a war crime? The UK wants to make the age 15. Russia and some Asian countries want to ban the Court from trying war crimes committed in internal armed conflicts, which would render it pretty useless as virtually all conflicts nowadays are within states. The ad-hoc Tribunals for ex-Yugoslavia and Rwanda are precisely for that purpose.

What sanctions will the Court have? Not the death penalty as that is entirely contrary to UN policy - witness the High Commissioner for Human Rights Mary Robinsons statements about the sentences carried out by the Rwanda government recently. (These sentences came from Rwandas internal law courts, not the UN Tribunal.) Life imprisonment and lesser terms, and fines. Should these go to the victims in reparation or should that be dealt with by other means?

The USA military is running a red herring, presumably designed to reduce the risk of the USA ever having to be subject to any form of international control, to the effect that tiny states could go to the Court with unfounded accusations against soldiers in peace-keeping forces in difficult situations. They fear politically motivated investigations by a rogue prosecutor or an overzealous tribunal, which shows little confidence in other states ability to choose competent judges. The UK position is that the Court should be able to try atrocities committed against peace-keepers, so surely the reverse must be the case?