Global Policy Forum

By Joshua Rozenberg

The goal of worldwide justice is likely to come a great deal closer next month. If all goes to plan, the world's first permanent international criminal court will finally come into being, more than half a century after the United Nations called for its creation. Britain has been in the forefront of moves to set up the International Criminal Court - or ICC - while the United States has long been opposed to the idea. The timing of its birth - when Royal Marine commandos expect to be fighting al-Qa'eda forces and the Taliban alongside their US allies - is therefore not without irony. By yesterday, 55 countries had ratified the treaty setting up the new court, which will have the power to try people accused of violating international humanitarian law. The existing International Court of Justice in The Hague deals only with states, not individuals. Just five more ratifications are needed before the ICC comes into force. These are expected in April. If the threshold of 60 countries is reached next month, the Rome Statute, setting up the ICC, will come into effect on July 1.

Since the statute does not operate retrospectively, that date will mark the start of the court's jurisdiction over genocide, crimes against humanity and war crimes. If the US had not campaigned so hard against the ICC, it is possible that the treaty could have been ratified in time to try any captured terrorists accused of the attacks on September 11.

However, individuals who commit war crimes and other grave offences after the statute comes into effect will be at risk of prosecution, even though the court's prosecutor and judges will not be elected before next year. The Rome Statute was adopted in 1998, ending five weeks of negotiations in the Italian capital. After the final vote, delegates from the 120 countries, which supported the treaty cheered and hugged each other in delight as the US representative - one of only seven who voted against - sat in silence.

Many states have had to change their own criminal laws before they could ratify the statute. In Britain, the International Criminal Court Act 2001 was passed to allow for the arrest and surrender of individuals for trial by the ICC, with equivalent legislation in Scotland.

The 2001 Act makes it an offence under the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime. The law applies to acts committed in England and Wales or acts committed abroad by United Kingdom nationals, residents and those subject to UK military law. Life imprisonment is the maximum penalty when murder is involved.

The ICC will step in only where other courts are unable or unwilling to tread. The court's jurisdiction is designed to take over where conflict has led to the collapse of the local judicial system, or where a dictatorial government refuses to punish its own abuses. On one assessment, that could leave the ICC with very little to do. After all, states that have ratified the statute should prosecute their offenders under their own newly-introduced war crimes legislation. Equally, some countries that have not ratified may be reluctant to send suspects for trial at the ICC, although other non-party states may see advantages.

However, Human Rights Watch, one of the non-governmental organisations that supports establishment of the new court, expects it to be busy enough. The states that have ratified the statute are due to meet at the United Nations in September to approve the rules of procedure and other key documents. The Assembly of States Parties, as the court's supervisory body will be called, is scheduled to elect the judges and prosecutor at its second meeting early next year. Investigations into suspected breaches of international criminal law should begin in the spring or summer of 2003. The ICC will be based in The Hague, not far from the war crimes tribunal for Yugoslavia. The two bodies have some similarities, but the tribunals for Yugoslavia and Rwanda are confined to specific conflicts.

The jurisdiction of the ICC is limited to crimes that are committed in the territory of a state that has ratified the Rome Statute, or that are committed by citizens of that state, or that are referred to the court by the UN Security Council. Opposition to the new court by both the Bush and Clinton administrations has been aimed at limiting the risk of what the US would see as politically-motivated prosecutions of US political leaders and military personnel.

But if the US were willing to charge its own troops with war crimes, it would be much harder for US forces to be tried by other countries that had ratified the Rome Statute or indeed by the ICC itself. The ICC cannot hear cases being tried or investigated properly in any country with jurisdiction.

There are other restrictions on prosecution that should calm fears of the court being hijacked for political reasons. The prosecutor will not be allowed to start an investigation without permission from a pre-trial chamber of three judges. The ICC will not replace national courts. According to Human Rights Watch, it should encourage national prosecutions in states that would otherwise avoid bringing war criminals to trial. Nobody supposes that courts can stop war. But the hope is that the ICC will at least make individuals think twice before committing crimes against humanity.

FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C íŸ 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.