Global Policy Forum

Judith February *

According to the United Nations, most perpetrators of war crimes and crimes against humanity throughout history have gone unpunished. In spite of the military tribunals following World War II and the two recent ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, not much has changed. Generally perpetrators of such atrocities believe that their crimes will go unpunished. Effective deterrence is a primary objective of those working to establish the international criminal court (ICC). Once it is clear that the international community will no longer tolerate such monstrous acts without assigning responsibility it is hoped that those who would incite a genocide, initiate a campaign of ethnic cleansing, murder and rape, will no longer find willing helpers.

The establishment of an ad hoc tribunal, as is the situation with the tribunals at The Hague, always raises questions of "selective justice". Why has there been no war crimes tribunal for the "killing fields" in Cambodia? A permanent court could operate in a more consistent way. The delays inherent in setting up an ad hoc tribunal can have several consequences: evidence can deteriorate or be destroyed; perpetrators can escape or disappear; and witnesses can relocate or be intimidated. Investigation becomes increasingly expensive, and the tremendous expense of ad hoc tribunals may soften the political will required to mandate them.

Ad hoc tribunals are, in addition, subject to limits of time or place. In the past year thousands of refugees from the ethnic conflict in Rwanda have been murdered, but the mandate of that country's tribunal is limited to events that occured in 1994.

In 1998 the international community adopted the Rome Statute that provides for the creation of a permanent ICC. The court will have jurisdiction to prosecute those accused of genocide, crimes against humanity and war crimes. However, it will not be able to pursue crimes that have been committed in the past or cases being dealt with by national courts. Because 60 states have ratified the treaty the ICC will in all likelihood be established by 2003. Thus far 139 states have signed the Rome Statute of the International Criminal Court and 67 states have ratified or acceded to it.

There has been much attention focused on the United States recently for its hesitance to ratify the Rome Statute of the International Criminal Court. The US signed the statute on December 31 2000 but has yet to ratify it.

It is obviously preferable for individual states to try accused citizens in the country in which the crimes were allegedly perpetrated. This is often not easy to do as the legal system in the country may have collapsed, the country may have a lack of resources to bring the accused to trial or there may be a lack of political will to deal with such matters. In addition, amnesty, pardon or immunity may have been granted to individuals. It has been decided that although, according to Amnesty International, the annual budget of such a court would be in the region of $100-million, this remains more cost-effective than attempting again to establish ad hoc international criminal tribunals. Situations calling for such ad hoc criminal tribunals are Cambodia, Chechnya, Iraq, Sierra Leone and Somalia. However, the cost has proved prohibitive. A permanent ICC would be in a position to prosecute when the courts of countries where crimes occurred are either "unwilling" or "unable" to prosecute the alleged perpetrators. The prosecutor of the ICC may open an investigation based on information received either from victims themselves, NGOs, the UN and, of course, the states themselves.

The Rome Statute has mechanisms to ensure that prosecutions and investigations by the prosecutor are not pursued for political gains. In addition, there are certain strict requirements that must be met before someone can be appointed as a prosecutor to the ICC. The efficacy of the ICC will, of course, depend largely on the extent to which states that have ratified the treaty cooperate with the ICC itself. The ICC's powers are, to some degree, limited. It does not, for example, execute warrants of arrest, search properties or compel witnesses to attend proceedings - unless states consent to the ICC doing so. States will have to carry out these functions.

So, in order that the trial runs smoothly from the initial stages of investigation to sentencing, the state involved needs to cooperate fully with the ICC.

One of the clauses in the Rome Statute requires states to "cooperate fully" with the ICC. This would include identifying witnesses, finding them, serving legal documents, examining sites, protecting witnesses, conducting searches and seizures, exhuming graves if necessary and preserving evidence. Should any state be of the view that the disclosure of information or the production of documents to the ICC would jeopardise its security, the relevant state should liase with the ICC to look at alternative ways to produce the information without prejudicing national security.

States in their national laws must remove any barriers to cooperation with the ICC, should these exist, particularly in respect of national courts. States that have not ratified the Rome Statute are not obliged to cooperate with the ICC. However, in terms of Article 87 (5) they could be required to provide ad hoc assistance. The ICC can also request that a state surrender an individual who has been accused of war crimes, genocide or crimes against humanity, even if the state's national law prohibits the extradition of such a person.

Every state that has ratified the Rome Statute should therefore review its national laws to ensure that there are no barriers to cooperating with the court and should make any necessary amendments or enact new legislation as soon as possible. South Africa along with Australia, Canada, the United Kingdom, Germany and New Zealand, is one of a handful of countries around the world that has begun to do so.

Another interesting provision is that states agreed, in terms of the Rome Statute, that they would adhere to any award of reparations to victims should the ICC have awarded such reparations. Sentences handed down by the ICC are to be served in facilities that have been volunteered by different states.

It is hoped though that through the mutual cooperation of ratifying states, the ICC will prevent future crimes against humanity and mete out justice for victims around the world.

* Judith February is the governance researcher for the political information and monitoring service at the Institute for Democracy in South Africa

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