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THE PROMISE OF JUSTICE First steps towards an International Criminal Court by Dr Glen Rangwaladedicated to the memory of Ted Dunn CONTENTS Introduction by Lord Archer of Sandwell QC The Promise of Justice by Dr Glen Rangwala
Documents referred to in the text (extracts)
This is the first in a series of publications by the Institute for Law and Peace dedicated to the memory of Ted Dunn, a long standing member of our organisation. As Joyce Pickard of the Institute for Law and Peace says: "How many of us, and in how many different contexts, will miss Ted Dunn! He was truly a 'Valiant for Truth' and a peaceful fighter for justice and sense, in place of threats, bullying and arms".
The Rt.Hon.the Lord Archer of Sandwell, Q.C. Perhaps the most important development in the evolution of civilized government was the recognition by minor princes and feudal barons that they were subject to national law, and answerable for transgressions to a central government, acting through its legitimate judicial system. But there was a price to pay. The doctrine of national sovereignty entailed that there was no redress for the misdoings of the national government itself, except such as it permitted within its own borders, and no one to question the authority which it conferred upon its officials. The atrocities committed by governments in the twentieth century persuaded the world that some acts of barbarism must be judged against internationally acknowledged standards, and the perpetrators be accountable to the global community. So was born the international machinery for the protection of human rights. But it has become clear that there can be no protection if offenders can find sanctuary within their national borders, or rely on unquestionable authority from their national governments. In 1998, an overwhelming majority of states were persuaded that there had to be a clearly formulated and enforceable body of international criminal law, an exercise for which the British Government can claim some credit. Dr Rangwala tells the story of what may well be judged by future historians to be a major milestone in the history of civilization, and all who care for the victims of barbarism will profit from reading it. It is not the last word. There is more work to be done before we can claim to live in a civilized world. But when we are tempted to complain that there has been so little progress, it is worth recognizing that, however exhausting and frustrating, some campaigns are eventually rewarded.
Dr Glen Rangwala August 2002 Dr Glen
Rangwala is a lecturer in politics at Newnham College, Cambridge University.
He trained as an international lawyer and specialises in the politics of the Middle East. On 1 July 2002, the International Criminal Court formally came into being, with its Statute now in force. This has been an event held in anticipation for more than eighty years, and may have momentous consequences for the future of international order and well-being. It could potentially rank alongside some of the key historic moments in attempting to contain and eventually eliminate the uncontrolled use of violence in international affairs, such as the Pact of Paris in 1928 and the establishment of the United Nations in 1945. The International Criminal Court will be able to prosecute individuals charged with genocide, crimes against humanity and war crimes. There is no immunity from the jurisdiction of the Court: whatever the official position of the individual, from Head of State to ordinary citizen, one’s status can no longer be recognised as exempting one from being held personally accountable in an international judicial forum. Crimes committed after 1 July can be prosecuted in the ICC if the state concerned has ratified the Rome Treaty. The court will not actually begin sitting until mid-2003 when the court premises in The Hague are expected to be ready. The establishment of the ICC is unique in history; there has never been a permanent international legal institution capable of prosecuting war crimes wherever they occur. The International Court of Justice, the highest legal body of the United Nations, can only engage with disputes between states, and does not have the capacity to try individuals. Other international criminal tribunals - Nuremberg, Tokyo and more recently for Yugoslavia and Rwanda - have been created on the hoof and with narrow mandates: they have been sharply limited in the range of events (and, in the case of Nuremberg and Tokyo, the range of people) that they are entitled to consider. As a result, no prior tribunal has had the potential to make a serious indent into the fabric of the international system: the vast majority of the world’s militaries have had little reason to pay attention to the few prosecutions that have been carried out in the name of international justice. Nevertheless, the idea of a permanent court against war crimes has been a long-held aspiration for many. After World War I, the idea was mooted at Versailles to establish a special tribunal at which Kaiser Wilhelm II could be tried. Most famously, the Nuremberg tribunal was established in 1945 with a set of principles that remain the cornerstone of modern international criminal law. As we all know, those principles were applied selectively. However, the idea of the world as a whole bringing to justice those individuals who order and commit acts of aggression and serious violations of international humanitarian law gained in currency because of the Nuremberg trials. The Nuremberg experience led directly to two other significant legal developments. Firstly, the Genocide Convention of 1948, a response to the evidence of the Holocaust brought out at Nuremberg, envisaged that those charged with genocide would be brought before an international legal tribunal. Those words, in article 6 of the Convention, have in effect been a dead letter for over fifty years: only this year can they come into action. At the same time as adopting the Genocide Convention, the United Nations General Assembly asked the International Law Commission (the ILC) to explore the possibility of setting up a permanent tribunal. The ILC is a body of independent experts that engages in the development and codification of international law on behalf of the United Nations. It worked away on the issue of a criminal tribunal until 1954 before concluding that it would not be possible in the context of the Cold War. It was only in 1989 - and for this we have Trinidad and Tobago to thank - that the issue was put back on the ILC’s agenda. By the time it submitted its draft statute for an International Criminal Court, the United Nations was establishing a temporary tribunal for those who had committed war crimes in the former Yugoslavia, and was shortly to create another tribunal for Rwanda. Naturally, there were administrative, legal and logistical difficulties in setting up a new tribunal for each of these situations. These difficulties would recur if separate new tribunals were established for future conflicts, as seemed inevitable. In this context, the creation of a permanent criminal court seemed like an obvious solution. After protracted negotiations, a final treaty was finally agreed at a conference in Rome in 1998 to establish the International Criminal Court. 120 states voted in favour of that treaty, with only seven states opposing. One of those dissenting states will be discussed below. The treaty needed ratification by 60 states in order to become operative, and this total was reached in April this year. By August, this had increased to 77 states. The UK ratified in October 2001. The total number of ratifying states may not sound overly impressive, but at present 139 states - almost three-quarters of the members of the United Nations - have signed the statute. Most of these are expected to ratify the Statute when the necessary legal procedures have been completed in legislatures around the world. So we can confidently expect that the ICC will secure widespread international support, giving it a robustness and legitimacy that may translate into a greater willingness of both the prosecutor and the judges to think and act independently of the narrow interests of the major world powers. So, what are we to make of the ICC? The Statute enables a wide range of crimes to be prosecuted, and this list is both extensive and in keeping with the development of war crimes law since 1945. For example, apartheid and rape - if committed as part of a widespread and systematic attack - are considered to be crimes against humanity. The standard of criminality is no less for purportedly internal conflicts, occurring within the boundaries of a single state: thus acts committed in civil wars will be firmly within the sights of the Court. In these respects at least, the opportunity for the Court to put criminal law into practice in the international arena remains undimmed. For those individuals and organisations that have long worked away in the cause of international justice, the sense of achievement must no doubt be strong. The UN Secretary-General, Kofi Annan, has said that, "In the prospect of an international criminal court lies the promise of universal justice. ... Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished." These are strong and ambitious claims, drawing upon a universal language of justice for victims of war, but is the rhetoric justified? A first limitation is that the ICC will not be a forum in which everyone who commits war crimes can be prosecuted. It cannot bring people to trial for actions undertaken before 1 July: so Kissinger, Pinochet or the remaining Khmer Rouge leaders will not be standing in the dock of the ICC. It will not be able to prosecute Ariel Sharon and Saddam Hussein for the Sabra-Shatila massacre or the Anfal campaign respectively, although there is a slim possibility that they could be prosecuted for their acts since July. Indeed, many supporters of Palestinian rights were among the first to petition the Court, urging the Prosecutor to consider the murder of 17 individuals when the Israeli forces dropped a one tonne bomb in the midst of the most crowded area on the planet, the Gaza Strip, on 22 July 2002. However, the possibility of a criminal investigation is slim - not because of any legitimacy of the act, which it surely lacks - but because of a second restriction on the court’?s action: it can only prosecute individuals who are from states that have accepted the jurisdiction of the court, or who have committed the acts in question on the territory of such a state. A further possibility is that the UN Security Council specifically requests the ICC to prosecute an individual, although this is unlikely as the US has already committed itself to vetoing any resolution that makes a request of the ICC. There are many acts that are recognised as international crimes but which the ICC will not be able to prosecute. In fact, the oldest international crime of all, piracy, is not on the ICC’s list. More importantly, the major focus of the Nuremberg trials, the crime of aggression, remains outside the judges’ remit at present. Aggression is formally listed in the ICC Statute as a prosecutable crime, but it can only be dealt with if a definition of it is agreed at a review conference in seven years’ time. It is widely believed that the UK in particular will block a coherent definition from emerging at this review conference. It regularly engages - in Iraq, Yugoslavia and Afghanistan among others - in actions that clearly fall within the historically accepted concept of aggression, including the definition of aggression adopted by consensus at the UN General Assembly in 1974 after over 20 years of negotiation. If the UK dissents at the review conference from the definition of aggression that it had previously agreed to, the crime of aggression will remain unprosecuted and unpunished by the ICC. Lastly - and it is a point frequently stressed by international lawyers and governments alike - the ICC will only act when a national legal system is unwilling or unable to act. National courts will always have a "first call", and only if they act in a manifestly inappropriate manner or fail to act completely could the ICC’s prosecutor take up the case. That is, the ICC will act in a complementary way to national courts rather than as the supreme international criminal institution. Despite these structural limitations to the work of the ICC, the major problem for the ICC is not a restriction in its statute, but a set of practical difficulties relating to the position of one state in particular. The United States has been fundamentally opposed to the ICC from the creation of its Statute, which it voted against. It tried unsuccessfully at the 1998 Rome Conference to obtain a permanent grant of immunity for its personnel - in effect, it asked for its soldiers to be granted the right to commit war crimes. Not even the UK delegation was willing to be that supine. The current US administration then turned to threats to withhold its dues from the United Nations and to prevent its personnel from participating in any UN operations unless the ICC Statute is re-written in line with its demands or the ICC is scrapped entirely. In one of the most reprehensible pieces of legislation to be placed before the US Congress, an anti-ICC bill has already cleared the first stages of legislation and has the support of the Presidency. This bill is dubbed the "Hague Invasion Act", because it authorises the President to use military force against the Netherlands to "rescue" any personnel detained by the ICC. I can think of few historical parallels in which a legislature specifically authorises the armed invasion of an acknowledged ally. Some of these conflicts came to a head in early July 2002, when the US blocked the Security Council’s renewal of the UN peace-keeping operation in Bosnia, citing concerns that its small number of personnel on this mission could be brought to trial for "politically-motivated" reasons before the ICC. The whole process in Bosnia built around the Dayton Peace Accords risked being dismantled for the sake of a set of irrational fears over the future of a few police advisers. This deepened the sense of distaste for the US stance among the diplomatic corps at the Security Council, especially as the US signalled that other UN operations, such as the one in Sierra Leone, would suffer a similar fate. Nevertheless, the prospect of a US veto - and the potential collapse of the whole UN peacekeeping system - forced the rest of the world into accept a troubling compromise. Under the ICC Statute, the Security Council has the exceptional power to defer a formal investigation or prosecution at the ICC for a period of 12 months. Britain proposed that the Security Council grant a year-long "let-out" clause to any individual on a UN or UN-authorised operation, if they are not a citizen of a state that is a party to the ICC. Therefore, US troops on UN operations in states that are party to the ICC Statute cannot be investigated by the ICC, whilst their colleagues on the same mission who are nationals of ICC party states can be. Furthermore, Britain’s draft resolution expressed the intention that this let-out clause would be renewed every year. With reluctance, the Security Council agreed to this condition on 12 July. Within two weeks of the ICC Statute coming into force, the first significant dents were being made into its limited claims to bring justice for the victims of war. The US position towards the ICC is of course part of a wider attempt by some senior members of the current administration to question, marginalise and in some aspects dismantle the structure of international law as it has evolved since 1945. This approach reflects a consistent ideological rejection of one of the key tenets held by supporters of international law: that it is in everyone’s long-term interest to adhere to a common set of rules. To take a single pertinent example, the official who wrote to the United Nations Secretary-General to pronounce the new administration’s rejectionist policy on the ICC was the US Under-Secretary of State responsible for Arms Control and International Security, John R. Bolton. He held top posts in both the Reagan and Bush Senior administrations before his current appointment. Shortly before he was appointed by President Bush Junior, he penned an article entitled, "Is there really ‘law’ in international affairs?" Now, as soon as you read a title like "is there really ‘law’?", you know that the author is going to answer in the negative. Mr Bolton does not disappoint: he argues that because what I have been calling international law is sometimes vague and lacks reliable enforcement procedures, it cannot properly be called law at all. Mr Bolton declines to mention that the vagueness and lack of enforcement procedures are often a result of the low level of US engagement with the co-operative institutions of the rest of the world. Also, the absence of an international police force in particular does not mean that there is no international law, as long as the states of the world recognise certain rules to be binding and act in accordance with them. In this sense, to tell us that no law exists because some states may not recognise it as such is to produce no more than a self-fulfilling prophecy. However, the majority of Mr Bolton’s long analysis of the status of international law is devoted to a rendition of why having international law would not be in the national interests of the United States, particularly insofar as international law would circumscribe the use of military force by the United States. Bolton tells us that he is opposed to the idea that the authorities in the US have "given up their ability to use military force to advance and defend what we define to be in our national interests". It should perhaps be added that the idea that a state can use military force to advance national interests is usually thought to have been comprehensively rejected ever since the Pact of Paris of 1928. But Mr Bolton is not necessarily opposed to restricting other states from using force however they see fit: he is opposed to restrictions on the United States, which he informs us, has a "unique international status". Similarly, the ICC is fatally flawed for Mr Bolton because it will cause problems in US military operations. If certain objects cannot be targeted by US bombers any more without the risk of a war crimes prosecution, then "the United States’ military will be far weaker than it would otherwise be". In other words, committing war crimes can sometimes be useful, for example in terrorising a civilian population or in destroying the infrastructure of a country. It is these sorts of attitude that, far from discrediting international law, should convince us of its necessity. Law provides rules that apply equally to all states. If a state wants to prohibit others from engaging in a form of action, it has to disavow that form of action in its own policy. Bolton, by claiming that a system of law should be denied as either a reality or as an aspiration due to the impact that this will have on the United States, is therefore inviting all other states to abandon these same standards. Neither Bolton nor his government seem to understand the human consequences of this disintegration of the international system. The ICC is in many ways the antithesis of the view that international rules are acceptable in controlling the weaker countries, but not in circumscribing the range of action of the powerful. If its potential is realised, it would demonstrate that international order and justice are served in the long-term not by allowing certain powers an unlimited use of force, but instead by prosecuting those who launch and conduct wars of aggression and cause needless bloodshed. It would also rely upon the basic legal presupposition of equality before the law: that an individual who commits a war crime is as culpable as any other who commits the same act, regardless of his or her nationality or position of political power. The starkness with which any system of international criminal law presents these axioms of interdependence and human equality is surely connected to the position of the current US administration.
DOCUMENTS REFERRED TO IN THE ABOVE TEXT (EXTRACTS) PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED IN THE CHARTER OF THE NUREMBERG TRIBUNAL AND IN THE JUDGEMENT OF THE TRIBUNAL Adopted by the United Nations International Law Commission 1950 PRINCIPLE I PRINCIPLE IV PRINCIPLE VI c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of, or in connection with any crime against peace or any war crime.
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948 Art. 4. Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Art. 6. Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
Article 21:Applicable law 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;
Tuesday, 23 July, 2002, 18:31 GMT 19:31 UK World condemns Gaza attack The international community has been swift to condemn an air strike by Israeli military forces on a residential complex in Gaza City which killed a Hamas military leader and 14 other people. United Nations Secretary General Kofi Annan "Israel has the legal and moral responsibility to take all measures to avoid the loss of innocent life; it clearly failed to do so in using a missile against an apartment building." ... Eyewitness: Gaza attack aftermath ... Also in the crowd was Mohammed Ower. Asked what he thought of Israel's claims that it has to kill these leading militants to prevent more Israeli deaths, he said: "They have the right to kill innocent children? If you bomb here with F-16s, you know that this will kill lots of children". ... Halima Matha lost several of her family members in the attack. From a building next to the scene of the Israeli attack, she told me what happened. "We were downstairs. We heard the bombing and we saw the rubble," she said. "The people who were upstairs - all of them have been killed."
TREATY PROVIDING FOR THE RENUNCIATION OF WAR AS
AN INSTRUMENT OF NATIONAL POLICY ARTICLE I: The high contracting parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another. ARTICLE II: The high contracting parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.
Coalition for the International Criminal Court ICC official web site International Law Commission United Nations site on International Law International Committee of the Red Cross GANA (for Nuremberg Principles) Edward Ginn Library (comprehensive text of treaties) Genocide Remembrance |
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