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ICC: Humanities Ultimate Outpost.
By - K.T.Rajasingham

The days of ad-hoc war tribunals and the culture of impunity are over. Nearly fifty-two years after the Nuremberg and the Tokyo war crimes' tribunals, 120 countries voted in July this year to establish a permanent International Criminal Court (ICC) to try individuals who commit genocide and crimes against humanity. K.T.Rajasingham explores the making of a milestone in the International legal arena.

At last, the world witnessed a step in the right direction, taken with resolve and finality, to establish an International Criminal Court (ICC), to safeguard humanity against 'the most serious crimes of concern' to the international community. This decision - a long felt need - affords the right opportunity, to end impunity for atrocious crimes, committed by individuals, is now a reality within our grasp.

Nearly, fifty-two years after the Nuremberg and the Tokyo war crimes' tribunals, 120 countries voted to establish a permanent international criminal court, to try individuals for committing genocide, crimes against humanity, war crimes and acts of aggression. The consensus of agreement reached to create such an international penal tribunal, is indeed an international law making human endeavor of historical proportion, a major global achievement.

United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, met in Rome, since from 15 June, to 17 July 1998, under the aegis of the UN, to ratify the draft, as well as to adopt a permanent mechanism to safeguard human-beings from the clutches of uncertainty and sudden death. The deliberation spanned over five weeks, pursued the draft statute, divided into 13 parts, composed of 116 articles, covering various issues regarding the establishment of the ICC. The diplomatic conference scrutinized every clause in articles, at times debating emotionally and sometimes acrimoniously, concluding reconstructing the final text, for adoption.

On July 17, in Rome, 120 countries voted with overwhelming majority, in favor of the adoption of the ICC, whilst 7 voted against, and with 21 abstentions. The vote taken by a secret ballot, and unrecorded. But United States, China and Israel said that, they voted against the proposal. Libya, Iraq, Qatar and Yemen, were too ashamed to admit that, they voted against the proposal. Among the countries abstaining from voting, Trinidad and Tobago, Singapore, and few Arab States. They withdrew from, for the failure to include the death penalty in the statute, while India and Mexico cited national security as one of their many concerns.

When the Chairperson of the Conference, Phillipe Kirsh declared, "It is so decided -," his declaration heralded the overwhelming support for the proposal to set up the ICC by the participant states.

( So many countries came voluntarily, in the interest of humanity, yielded ground on such a fundamental aspect of state sovereignty, and made the long awaited proposal an achievable reality. Bill Pace, the coordinator of the non-governmental coalition for an international criminal court, reminded the celebrating delegates that "too much of history is the story of the wars won and peace lost. Today peace has won, war has lost.")

The idea of creating a criminal court, to try individual offenders, was there for some time in the international community. For the first time, after the first world war and again at the conclusion of the second world war, the idea resurfaced, but the much needed resolve to create such a mechanism lacked among then world leaders. On 9 December 1948, United Nations General Assembly adopted, the Convention on the Prevention and Punishment of the Crime of Genocide. Article 6, called for acts of genocide be tried "by such international penal tribunal as may have jurisdiction with respect to those contracting parties, which shall have accepted its jurisdiction." Accordingly, in 1948, the UN General Assembly mandated the International Law Commission, to study the possibility of establishing a permanent ICC.

Why was the establishment of the ICC took such a long time? Even though, the international community felt the need for the establishment of a permanent mechanism, the infectious cold war and the prevailing factionalized international political climate made it difficult to become a reality. Meanwhile, the world continuously witnessed widespread atrocities, brutal genocide's, ethnic cleansing and acts of aggressions, committed all over the world.

The Security Council failed to create a war crime tribunal, to investigate the genocidal acts, killing more than 15,000 Tamils, by the Indian forces known as IPKF, when they occupied the North and Eastern Provinces of Sri Lanka from 1987 to 1990. Similarly, Security Council failed to set up ad-hoc war tribunal, when the Indonesian army slaughtered 200,000 Timorese civilians during Indonesia's occupation of former Portuguese (East) Timor.

The genocide in Cambodia, where more than 2 million people lost their lives from 1975 to 78, the ethnic cleansing in Yugoslavia, which caused the death of 500,000 people and in Rwanda, where more than 800,000 Tutsis and moderate Hutus, massacred by the Hutu extremists, are few of the horrendous acts against humanity. The United Nations Security Council established ad-hoc war crime tribunals, as a special measure, one for the former Yugoslavia in 1993, and another for Rwanda in 1994. These acts of establishing ad-hoc tribunals were not a permanent solution, but sent strong message to those individuals involved in atrocious acts, that their acts would not go unpunished.

But, after the end of the cold war, the suggestion about ICC resurfaced, and in 25 November 1992, the UN General Assembly resolved and requested the International Law Commission, to draft a statute for a permanent ICC, for submission by July 1994. Accordingly, when the Law Commission submitted the draft statute, the General Assembly decided to establish an Ad-hoc Committee, on the Establishment of an ICC "open to all state - members of the United Nations, or members of specialized agencies, to review the major substantive and administrative issues arising out of the draft statute."

Again, in 1995, the General Assembly resolved to establish a Preparatory Committee, mandating it with, "preparing a widely acceptable consolidated text of a convention for an international criminal court, as next step towards consideration by a conference of plenipotentiaries. The Preparatory Committee met six times during the past three years. These meetings provided an opportunity for governments representatives and relevant organizations, to study the issues and contribute to the drafting of the statute. Meanwhile, on 16 December 1996, on the recommendation of the International Law Commission, the General Assembly resolved that "a diplomatic conference on plenipotentiaries be held in 1998, with the view to finalizing and adopting a convention on the establishment of an international criminal court." The Preparatory Committee submitted the draft statute to the conference in Rome, for ratification and adoption.

The US Ambassador to UN, Bill Richardson, addressed the opening session in Rome. He said, "It is time that, we make real the aspirations of the past 50 years: the establishment of a court to ensure that the perpetrators of the worst criminals of the worst criminal assaults on humankind…. Do not escape from justice."

(Continues next week)

(The writer, K.T.Rajasingham, is a consultant to regional governments on political affairs and an ex-Sri Lankan journalist)

Courtesy - WEEKEND EXPRESS - Saturday, October 10 - Sunday October 11, 1998.

ICC: Humanity's ultimate outpost

The days of ad-hoc war tribunals and the culture of impunity are over. Nearly fifty-two years after the Nuremberg and the Tokyo war crimes' tribunals, 120 countries voted in July this year to establish a permanent International Criminal Court (ICC) to try individuals who commit genocide and crimes against humanity. K.T.Rajasingham explores the making of a milestone in the International legal arena. (Continued from October 10)



(Subsequently, the US insisted on a feeble court, without any independence of action. The Rome statute struck off an earlier provision that, permanent members of the UN Security Council could veto ICC cases, and Washington was helpless to do anything about it. The Clinton administration fought so hard to make the ICC's Prosecutor subordinate to the Security Council, finally voted against the statute, when it could not have its way. The self-proclaimed super policeman of the world, wanted a court for everyone one in the world, except Americans. )

The current momentum opens new possibilities for global accountability of ending the culture of impunity. The court when established, is to try individuals accused of crimes of genocide, crimes against humanity, war crimes and aggression. Even though, the ICC will try individuals and not states, the nature and the scale of the crimes make it obvious that the state's behavior is the court's real target. If individuals commit any of the crimes listed in the statute and not prosecuted by their own states, the court would have the jurisdiction over them, so long as the state concerned is a party to Rome treaty. Even if the state is not a party to the treaty, its citizens could be prosecuted, if they commit any of the listed crimes.

The International Red Cross and various other NGOs, criticized the statute, for making it difficult to prosecute crimes committed in domestic civil wars, according to them, most dastardly human crimes originate in such conflicts. In the present world order, the domestic or internal conflicts, poses the greatest challenge to humanity, than the external aggression and they lamented over the compromises whilst ratifying the final draft. Make no mistake that, many of the egregious crimes against humanity arisen, in the context of domestic wars without witnesses.

Civil unrest of protracted nature of that of in Myanmar, Afghanistan, Sri Lanka, Cambodia, Angola, Sudan, Democratic Republic of Congo (former Zaire), Mauritania, Sierra Leone, Liberia, Nigeria and in several Latin American countries, causes the greatest challenge to the safety and 'the right of life,' to millions of individuals. These global outposts of ethnic conflicts, escape from the jurisdiction of the court. Unfortunately, the international system is far too unequal and prone to double standard, for states to run the risk of inviting external intervention in the internal conflicts.

The ICC's intervention in a domestic war, may create situation to define it as an infringement of national sovereignty, which is an unpalatable situation, but under the existing circumstances of a discriminatory world order, it has become a necessary evil for the international community bear with it. It is unfortunate that, the omission of the use of nuclear, biological and chemical weapons from the list of war crimes is inexplicable and unforgivable, given their indiscriminate genocidal nature.

Earlier, the Nuremberg tribunals had taught the world that, the explanation "I was just following orders" is no excuse for crimes against humanity. The crime includes acts such as murder, extermination, enslavement, deportation or forceful transfer of population and other sexual abuses. The statute does recognize "forced pregnancy' as a crime and when explained, it means that, "the unlawful confinement of a woman forcibly made pregnant, within the intent of affecting the ethnic composition of any population, or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancies."

Inclusion of crimes, qualifying as genocide (Genos is a Greek word means, tribe or race and cide is a Latin word means, killing and coined to describe Nazi activities in Europe during World War II) is virtually universal.

(According to Article 5, of the statute "…Genocide means any act committed with intent to destroy, the whole or in part, a national, ethnical, racial or religious groups, such as: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. Under this following acts shall be punishable:
(a) genocide; (b) Conspiracy to commit genocide; direct and public incitement to commit genocide; (d) attempt to commit genocide and (e) complicity in genocide.)

The most glaring shortcoming, is the failure to write into the statute, the legal definition of 'aggression.' Earlier, the Nuremberg Tribunal, condemned a war of aggression in the most strongest terms: "To initiate a war of aggression is not only an international crime; it is the supreme international crime differing only from other war crimes, in that, it contains within itself the accumulated evil of the whole." It held individuals accountable for "crimes against peace," defined as the "planning, preparation, initiation or waging of a war of aggression, or war in violation of the international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.." The UN General Assembly resolution of 1974, on the Definition of Aggression, defines aggression as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of UN." Some states are of the view that, exclusion of 'aggression' would leave a significant gap in the court's jurisdiction. Some other states expressed opinion that, holding individuals responsible for the crimes of aggression will act as deterrent, and that by deterring an aggressor from initiating a conflict (which might lead to a conflagration), the attendant of war crimes and crimes against humanity could be prevented.

According to the reading of Article 39, of the UN Charter, only the UN Security Council has the right to determine, whether an act of aggression has taken place. Therefore, failure to include in the statute, the definition for aggression, might drag the Security Council to interfere in the future smooth functioning of the ICC, but if in case, when the definition of aggression is finally adopted, it must not provide opportunity for the Security Council to interfere in the functioning of the court.

Resolution to establish an International Criminal Court could be described as one the biggest legal achievement and an expedient implementation must be adhered, to make it soon a reality.

In the years ahead, there is to be a great respect in the observance of the international humanitarian law, when ICC begins to function effectively. The success of the International Criminal Court is now left in the hands of all the states, to take the institution seriously, which would allow the humanity to discern that, they have at last explored the correct and a sustainable mechanism, to safeguard and protect individuals safety and their 'right of life.'

(Concluded)

(The writer, K.T.Rajasingham, is a consultant to regional governments on political affairs and an ex-Sri Lankan journalist)

Courtesy - WEEKEND EXPRESS - Saturday, October 24 - Sunday October25, 1998.

E-Mail: ktraja@loxinfo.co.th

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