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
T.phone: 0066-25176253 or 0066-1879070, Telefax: 66-2-517 6253
K.T.Rajasingham, House No: 8/6, Muban Amoronpan Nakorn, Sukapibal Road 2, Suan Siam, Bangok 10230, Thailand.