Global Policy Forum

By Peter Kammerer *

Those questioning the worth of the newly established International Criminal Court might be surprised to know that human rights advocates do not share their pessimism. Rather than seeing the court as yet another toothless world body, experts from groups like Amnesty International believe it may be the answer to resolving conflicts like that between Israelis and the Palestinians.

Legal analysts are poring over the statute under which the court was created in search of ways to overcome the most obvious difficulty - disputes which occur in countries which have not ratified or signed the document.

Palestinians last week believed they had a strong case to approach the court after Israel bombed an apartment building in Gaza City, killing 15 people, including nine children. But the Palestinians do not have their own state so cannot file for an investigation by the court's prosecutor. Israel has not approved the statute. Cases can be taken up by the United Nations Security Council and forwarded to the court, but that needs the approval of the body's five permanent members and one, the United States - Israel's closest ally - is not shy about objecting to matters involving the Middle East.

But it is not a hopeless situation, says Christopher Keith Hall, one of Amnesty's legal experts. He says a little-noticed provision of the statute allows for cases to be brought against nationals from countries which recognise the court. In the case of the death of Palestinian civilians in Israel-ordered military strikes, many Israelis have dual citizenship.

"So if any of the Israelis involved anywhere up the chain of command from the pilot to the prime minister carry passports of states which are party to the statute, then they clearly fall within the jurisdiction of the court," he said. "But it also works the other way - Palestinians who commit crimes against humanity and have dual nationality of a country which has ratified the statute could also potentially face prosecution."

He said the court was also relevant to Israeli settlements in the Golan Heights, which were under Syria's control until taken by Israel during the so -called Six Day War in 1967. "When Syria ratifies the statute, possibly later this year, it will be an interesting question about what to do with those cases," he said.

The court came into being on July 1 and 76 states among the 139 signatories of the statute have ratified it. US President George W. Bush's refusal to participate has significantly weakened the court's worth, some observers say. Washington threatened to pull out of United Nations peacekeeping operations unless its citizens were given immunity from prosecution, arguing US courts alone had jurisdiction over such matters. A compromise at the UN on July 12 allowed a year-long moratorium on action. Mr Hall said the court was permanent and although the Bush administration was unlikely to change its mind, US citizens could not remain immune from prosecution indefinitely.

Wrangling also lies ahead on who the prosecutor and 18 judges will be. Apart from indicating that at least nine of the judges should be international criminal law experts and another five international law specialists, the now -disbanded preparatory committee could not agree on which countries they should come from. An assembly of participating countries will tackle the problem in September and the judges will hopefully be elected at a second meeting in February. The court will be inaugurated in March and barring further hitches, be fully functional at its offices in the Hague by May or June. An advance team is already in place and will accept and file cases for future consideration. A panel of three judges will decide which cases are to be investigated. Mr Hall believes cases have already been filed, although no information is available.

The inspiration for the court arose from the conflicts in Rwanda and the former Yugoslavia during the 1990s which left at least 1.5 million people dead as a result of genocide and ethnic cleansing. Equally relevant was the killing of more than one million people in Cambodia during the late 1970s by the Khmer Rouge and the inability of the world community to have their leaders face justice.At a meeting in Rome in 1998, participating nations created the foundations of the court with an aim to prosecute and bring to justice those responsible for the worst atrocities - genocide, crimes against humanity and acts of war.

But the statute also provides for the prosecution of lesser crimes. Cases can be considered where there have been intentional attacks directed "against the civilian population as such or against individual civilians not taking direct part in hostilities". Philippe Kirsch, the chairman of the Rome meeting and the preparatory committee, admitted the court could not be considered a panacea and was instead designed to be one of a number of instruments which could be used to resolve the world's conflicts and provide justice.

"Everyone recognises that the first responsibility to ensure punishment of various serious crimes belongs to the states that normally exercise jurisdiction," he said. "But sometimes, those states don't do it. Then the International Criminal Court is supposed to take over."

The court's restrictive judicial scope means cases can only be considered in certain circumstances. Where two countries are involved in a conflict, either can ask the court to investigate whether a case can be brought. If crimes are committed within a country against a minority - such as by Indonesian-backed groups trying to prevent East Timor's independence in 1999 - the Security Council can file a case. Where two or more states are involved, one must give its consent before an inquiry can take place.

"This, of course, would exclude a number of situations - all that take place entirely within a single state which would not be prepared to co-operate," Mr Kirsch said. "This means the court will only be really effective when there is broad ratification of the statute. That will take a number of years."

One highly positive sign was that China had hinted it might ratify the statute, he said, adding: "The pace of ratifications will continue and we may be close to 90 to 100 by the end of the year." Mr Kirsch said that given time, the court would provide a strong deterrent. "The Geneva Conventions have a provision to prosecute the authors of war crimes or extradite them to a state where they would be prosecuted," he said. "It is the same as the mechanism against terrorism. I'm not aware that that provision has been terribly effective in the past. I think the chances of having something done are higher with the court statute."

* Peter Kammerer is the Post's foreign editor.

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