August 13, 1997
By BARBARA CROSSETTE
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August 13, 1997 |
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The establishment of a permanent court to judge the most terrible of mass crimes -- including genocide and the massacres that have come to characterize the ethnic conflicts of recent decades -- is a goal that has eluded members of the United Nations for half a century.
It is now within a year of becoming reality, if the remaining trepidations of some nations can be overcome.
The obstacles could still be formidable. Many countries, including the United States, are wary of a criminal court with powers that cross borders. There is not complete agreement on what crimes the court would take on. There are wide differences of opinion on how crimes would be taken to the court, in particular whether a chief prosecutor would have the authority to originate cases.
The Clinton administration backs the proposed court, which would be established by international treaty. But U.S. participation would require the consent of a Republican-controlled Congress, where many international issues have been bogged down by the Senate Foreign Relations Committee.
U.S. diplomats and legal experts agree that chances that an international criminal court will emerge from a treaty conference scheduled for next June in Rome have improved.
"Three years ago, almost all major powers opposed it," said William Pace, chairman of a coalition of human rights and legal groups. "Now virtually all governments have affirmed support. We are optimistic that this could be the last major international organization established in this century, which has been by all accounts the bloodiest, most war-ridden century in all of history."
The absence of a court to deal with figures like Pol Pot, the Khmer Rouge leader whose reign of terror left more than a million Cambodians dead, has been widely noted. And the creation of tribunals to deal with war criminals in the Balkans and Rwanda has laid the groundwork for a more lasting forum.
"The establishment of the Yugoslavia tribunal and the tribunal for Rwanda has shown that we can operate on an international level," said Gabrielle
Kirk McDonald, an American judge serving on the Balkans tribunal in The Hague. She is taking part in the discussions here.
"We at the Yugoslavia tribunal brought together 11 judges, all from different systems in different countries, and we were able to draft rules of procedure and evidence that we believe met the needs of all of the systems," said Ms. McDonald, a civil rights lawyer and former federal judge in Texas.
The tribunal juggled common law, civil law and military justice systems, she said.
"We basically created an international code of criminal procedure," she said. "I think we have been able to conduct a fair trial in an international setting." The only flaw in the system, she added, is that the present tribunals lack the power to order or make arrests, slowing the judicial process considerably.
David Scheffer, who last week was sworn in as the Clinton administration's special envoy dealing with war crimes, said Tuesday that there were three major areas of concern to the United States: how cases get to the court, whether or when international law would complement or supersede national systems and how the court's procedures are defined.
Washington wants the Security Council to be the arbiter of what cases would go to the international court, a view at odds with nearly all other countries. Europeans and some Latin American nations would give international prosecutors wide latitude in bringing cases. Other nations, especially in Asia, want governments to have some control over all stages of the court's activities.
"You cannot have a system that tries to end-run the Security Council," Scheffer told reporters at a briefing Tuesday.
In the developing world, U.S. insistence on Security Council jurisdiction raises fears that Washington would use its influence to choose which cases it would allow the court to hear. The United States and the other permanent Council members -- Britain, China, France and Russia -- could use the veto to limit jurisdiction.
"The international criminal court could be used to harass nations of the south," Connie Ngondi, executive director of Kenya's branch of the International Commission of Jurists, said Monday. She added that there was also apprehension in Africa that an international criminal court would have too much power to intrude in a country's internal affairs.
The United States insists that the court's jurisdiction be limited to cases of genocide, crimes against humanity and war crimes, with sexual assault built into the definitions. Scheffer said he would meet with representatives of women's legal organizations this week to address concerns about procedures and language that could be important to safeguarding women's rights.
But the administration opposes the inclusion of international terrorism and organized crime, which many other countries wanted to bring into the court's purview.
The American Bar Association will make a formal recommendation on the court at a meeting early next year. The association initially supported including terrorism, said David Stoelting, co-chairman of its coordinating committee on the court. But after noting the State Department's objections, he said the association "may adjust some points."
Tuesday, Scheffer outlined the problems that Washington had with too broad a jurisdiction for the court.
"There is a reality, and the reality is that the United States is a global military power and presence," he said. "Other countries are not. We are.
"Our military forces are often called upon to engage overseas in conflict situations, for purposes of humanitarian intervention, to rescue hostages, to bring out American citizens from threatening environments, to deal with terrorists. We have to be extremely careful that this proposal does not limit the capacity of our armed forces to legitimately operate internationally.
"We have to be careful that it does not open up opportunities for endless frivolous complaints to be lodged against the United States as a global military power."
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09:32 a.m. Jun 20, 1997 Eastern |
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``It is unacceptable for the future of law that criminals be able to live peacefully under the protection of the principle of non-interference,'' France's new Health Minister Bernard Kouchner told the group called No Peace without Justice.
The group, including European Commissioner for Human Rights Emma Bonino and ex-United Nations chief Boutros Boutros-Ghali, is seeking to increase public pressure on governments to set up the international criminal court at a diplomatic conference tentatively scheduled in Rome in June 1998.
Participants at the Paris seminar said a major problem was to give a court teeth and end such situations as former Bosnian Serb leader Radovan Karadzic being able to avoid being brought to the special tribunal on war crimes in former Yugoslavia.
Kouchner, who has championed the right to interference in nations on humanitarian grounds, suggested that the United Nations set up a ``human rights army'' to enforce the proposed court's rulings and arrest criminals.
French ex-justice minister Robert Badinter said the court would be a powerful deterrent as would-be criminals would know they would have to live under perpetual threat of arrest.
``Life is long. Those who feel protected by their government could be handed over tomorrow if power changes,'' he said.
Boutros-Ghali said the proposed court was essential to prevent repetition of conflicts such as ``the perpetual vendetta'' between Hutus and Tutsis in Rwanda and Burundi.
Kouchner said it would prevent such ``blood-chilling images'' as Khmer Rouge guerrillas responsible for the genocide in Cambodia returning to Phnom Penh without facing prosecution.
He said the court's archives would also be a bulwark against collective amnesia and prevent today's genocides from being denied in the future.
Prospects for creating the court improved in November when a U.N. committee agreed on the 1998 conference to complete and adopt a convention setting up such a tribunal.
Conference sources said major powers like the United States and Britain had dropped their initial reluctance towards the court, which has been under discussion for years.
``Today's utopias are tomorrow's realities,'' Boutros-Ghali said. ``I feel we are on the verge of success,'' Badinter said.
The court would try individuals for gross breaches of international humanitarian law although the list of offences to come under its jurisdiction has still to be decided.
Bonino proposed to initially restrict the offences to genocide, crimes against humanity, war crimes and international aggression. Kouchner said further widening the court's competence would ruin it ``through excess luggage.''
Among issues to be resolved is how the tribunal would complement national courts and whether it should deal with such crimes as international terrorism, drug trafficking and attacks against U.N. personnel.
Another issue still to be decided is the relationship between the proposed court and the U.N. Security Council, where the United States, Russia, Britain, China and France have permanent seats and a veto.
Bonino said the court should be established by the diplomatic conference rather than by the Security Council to avoid the feeling that it was being imposed by the major powers.
Work on an international criminal court has been continuing for years. The idea received growing support when, in the absence of such a tribunal, the U.N. Security Council set up two separate courts, in 1993 and 1994, to deal with war crimes in the former Yugoslavia and in Rwanda.
Copyright 1997 Reuters Limited. All rights reserved.
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World Criminal Court Having Painful Birth
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After nearly 50 years of false starts and inattention, the world community is well on the way to establishing a permanent international court that would for the first time have the power to try individuals.
. . . . A meeting of legal experts concluded at the United Nations last week with a clearer picture of what the court will be and how it will function.
. . . . Although there are scores of questions still to be settled, overt opposition to the tribunal has largely been replaced by quibbling over the details.
. . . . "I do not know any state opposing the creation of the court," said Adriaan Bos, the Dutch chairman of a working group.
. . . . The court also has bipartisan support in Congress, although it is likely to run into opposition from the Senate Foreign Relations Committee, whose chairman, North Carolina Republican Jesse Helms, has long opposed any treaty thought to limit American sovereignty. A spokesman for the senator declined yesterday to comment on the issue.
. . . . Most legal scholars say the jurisdiction of the court has been sufficiently narrowed that it is unlikely any American would be called before it. They say the U.S. court system is well-enough established that the international tribunal would defer to it.
. . . . Bruce Fein, a Washington lawyer specializing in constitutional law, also noted that the United States would be able to use its U.N. veto to protect its citizens, though perhaps at the cost of some embarrassment.
. . . . But he criticized the plan on the grounds that different countries have widely varying ideas about what constitutes a war crime or genocide, and that any prosecution -- even if morally justified -- was bound to become caught up in international politics.
. . . . "In my opinion, it tarnishes the idea of international law to use it as a cloak for what is a political decision," he said.
. . . . As little as three years ago, opposition to the court was fairly widespread, with the United States and Britain among those reluctant to surrender sovereignty to an international body.
. . . . However, many of these fears have been addressed. Progress in deciding the court's structure and scope is so advanced that officials now are confident they will have a document to present to diplomats who gather in Rome for a treaty conference next June.
. . . . That conference is timed to coincide with the 50th anniversary of the U.N. convention against genocide.
. . . . The new court would investigate and prosecute individuals accused of committing crimes against humanity, genocide and war crimes --all of which have long been defined by international treaty.
. . . . But the court would not have jurisdiction to try drug traffickers or terrorists, as several governments had wanted.
. . . . This fills a gap in the mandate of The Hague's International Court of Justice, which settles disputes among nations and advises the United Nations on questions of international law. It has no jurisdiction over crimes committed by individuals.
. . . . Negotiators also have agreed that the new court would deal only with cases in which the legal system of the country involved was inadequate to provide a proper trial.
. . . . Recent ad hoc tribunals established to prosecute war crimes in Rwanda and Bosnia are examples of the role the court would play. But backers say a permanent court would earn more prestige and respect than those tribunals.
. . . . The new court has the backing in principle of the American Bar Association and the Clinton administration, which three weeks ago created the position of ambassador at large for war-crimes issues.
. . . . Because of the nature of the crimes being considered, the only people who could be effectively prosecuted would be soldiers, their civilian commanders and members of paramilitary groups.
. . . . But the Clinton administration has made it clear that it will not accept any agreement that could lead to the prosecution of U.S. soldiers or compromise American military activities.
. . . . "The reality is that the United States is a global military presence. Many other countries are not," Ambassador David Scheffer, the chief U.S. negotiator on court issues, said last week.
. . . . "Our military forces are often called upon to engage overseas in conflict situations. ... We have to be extremely careful that this proposal does not limit the ability of our armed forces to operate internationally."
. . . . Former U.S. Attorney General Benjamin Civiletti, who chaired an American Bar Association task force on the court, has suggested that the court's jurisdiction be limited even further, to civilians with military affiliations.
. . . . These would include mercenaries under foreign command, civilian guards under military employment or those who act as military agents or abettors.
. . . . One of the biggest disagreements at the latest preparatory meetings centered on who will have the right to refer cases to the court for prosecution.
. . . . Almost every nation wants the power to refer a situation directly to the court's prosecutor, who then would decide whether to pursue it.
. . . . The United States accepts that with the caveat that the U.N. Security Council would have to approve any prosecution related to matters under its consideration.
. . . . Mr. Scheffer acknowledged this would allow any of the five permanent members -- China, Russia, Britain, France and the United States -- to use its veto to keep virtually any case out of the court.
. . . . Another major sticking point is whether a case could proceed without the cooperation of the country where a crime took place, or of nations holding indicted persons or evidence.
. . . . India, Mexico, China and other nations say such consent should be necessary, but others -- including several European states, Australia and Canada -- argued that this would block almost any investigation.
. . . . It must also still be decided how to determine when a particular country's legal system is sufficiently developed to handle a case. Nor is it clear where the court would be located, how the prosecutor would be chosen, or what sort of latitude it would have in sentencing.
. . . . These details must be worked out at two remaining committee meetings before the Rome conference.
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Campaign underway for international crimes court
09:32 a.m. Jun 20, 1997 Eastern
PARIS, June 20 (Reuter) - A group of prominent politicians launched a campaign on Friday to set up an international court next year to try crimes against humanity and make it possible to pursue suspects.
``It is unacceptable for the future of law that criminals be able to live peacefully under the protection of the principle of non-interference,'' France's new Health Minister Bernard Kouchner told the group called No Peace without Justice.
The group, including European Commissioner for Human Rights Emma Bonino and ex-United Nations chief Boutros Boutros-Ghali, is seeking to increase public pressure on governments to set up the international criminal court at a diplomatic conference tentatively scheduled in Rome in June 1998.
Participants at the Paris seminar said a major problem was to give a court teeth and end such situations as former Bosnian Serb leader Radovan Karadzic being able to avoid being brought to the special tribunal on war crimes in former Yugoslavia.
Kouchner, who has championed the right to interference in nations on humanitarian grounds, suggested that the United Nations set up a ``human rights army'' to enforce the proposed court's rulings and arrest criminals.
French ex-justice minister Robert Badinter said the court would be a powerful deterrent as would-be criminals would know they would have to live under perpetual threat of arrest.
``Life is long. Those who feel protected by their government could be handed over tomorrow if power changes,'' he said.
Boutros-Ghali said the proposed court was essential to prevent repetition of conflicts such as ``the perpetual vendetta'' between Hutus and Tutsis in Rwanda and Burundi.
Kouchner said it would prevent such ``blood-chilling images'' as Khmer Rouge guerrillas responsible for the genocide in Cambodia returning to Phnom Penh without facing prosecution.
He said the court's archives would also be a bulwark against collective amnesia and prevent today's genocides from being denied in the future.
Prospects for creating the court improved in November when a U.N. committee agreed on the 1998 conference to complete and adopt a convention setting up such a tribunal.
Conference sources said major powers like the United States and Britain had dropped their initial reluctance towards the court, which has been under discussion for years.
``Today's utopias are tomorrow's realities,'' Boutros-Ghali said. ``I feel we are on the verge of success,'' Badinter said.
The court would try individuals for gross breaches of international humanitarian law although the list of offences to come under its jurisdiction has still to be decided.
Bonino proposed to initially restrict the offences to genocide, crimes against humanity, war crimes and international aggression. Kouchner said further widening the court's competence would ruin it ``through excess luggage.''
Among issues to be resolved is how the tribunal would complement national courts and whether it should deal with such crimes as international terrorism, drug trafficking and attacks against U.N. personnel.
Another issue still to be decided is the relationship between the proposed court and the U.N. Security Council, where the United States, Russia, Britain, China and France have permanent seats and a veto.
Bonino said the court should be established by the diplomatic conference rather than by the Security Council to avoid the feeling that it was being imposed by the major powers.
Work on an international criminal court has been continuing for years. The idea received growing support when, in the absence of such a tribunal, the U.N. Security Council set up two separate courts, in 1993 and 1994, to deal with war crimes in the former Yugoslavia and in Rwanda.
Copyright 1997 Reuters Limited. All rights reserved.
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World Criminal Court Having Painful Birth
Campaign underway for international crimes court
US Congressmen favor surrendering US sovereignty and citizens to UN court