By James Podgers
American Bar Association JournalNovember, 2002
Technically, at least, the new International Criminal Court is open for business. A bare-bones advance team has set up temporary quarters in The Hague, Netherlands, where the ICC will be based. Suggestions even have started coming in for cases the court might consider, although many don't fit its jurisdictional mandate.
The reality, however, is that the ICC has a long way to go before it is ready to start handling cases. The court is not expected to be fully operational until late 2003 at the earliest.
International law experts say that how the court deals with a number of startup issues will help determine whether it develops into a viable legal entity.
"What the court does in its first year or two will shape how people view it," says David P. Stoelting of New York City, who chairs the International Criminal Law Committee in the ABA Section of International Law and Practice.
The ICC, which came into official existence July 1, is venturing into uncharted territory as the first permanent international tribunal empowered to try individuals, including government leaders and members of military forces, for serious criminal violations of international human rights laws.
The court was created by the Statute of the International Criminal Court, which was negotiated at a 1998 treaty conference in Rome sponsored by the United Nations. The statute entered into force after 60 states ratified it; the number now exceeds 80.
The court will operate independently from the United Nations, and its funding will come from the Assembly of States Parties, made up of countries that have ratified the Rome statute.
Previous war crimes tribunals were formed on an ad hoc basis with jurisdiction limited to cases arising out of specific conflicts, such as those that broke out in the former Yugoslavia and in Rwanda during the early 1990s.
The ICC, by contrast, will operate with jurisdiction that potentially reaches around the world. It may exercise jurisdiction in the following circumstances:
The court's subject-matter jurisdiction will cover genocide, crimes against humanity and war crimes, which have been defined in the Rome statute, as well as in subsequent documents. The court also will have jurisdiction over the crime of aggression, which has yet to be fully defined.
Under the principle of complementarity, the court may investigate and prosecute a case only if a state is unwilling or unable to do so.
UNTESTED PROCEDURES
The ICC's somewhat byzantine jurisdictional regime will be administered by an international panel of judges--also elected by the states parties--who will apply a hybrid set of procedural rules that have never been tried before. "It doesn't look exactly like the common-law system, but it was written to provide for fair trials," says Fiona McKay, director of international justice programs at the Lawyers Committce for Human Rights in New York City.
"There is a lot of unsettled law here, and there are a lot of fundamental issues of fairness that need to be worked out," says Ruth Wedgwood, an international law professor at Yale Law School and Johns Hopkins University. She also serves as a senior fellow at the Council on Foreign Relations.
But the greatest concern of proponents of the International Criminal Court is that the United States is its strongest critic. The Bush administration and members of Congress fear that the ICC's jurisdiction might allow it to try members of the U.S. military. In a few cases, U.S. personnel could come under the court's jurisdiction even though the United States has not ratified the statute. U.S. officials also have charged that the court will be too independent from the control of the U.N. Security Council, of which the United States is a member.
On May 6, the State Department submitted a letter to U.N. Secretary-General Kofi Annan stating that since the United States "does not intend to become a party to the treaty, it has no legal obligations arising from its signature on Dec. 31, 2000." Then-President Clinton had signed the Rome statute on that date, but never submitted it to the Senate for ratification.
In early August, President Bush signed into law legislation that prohibits U.S. cooperation with the ICC and authorizes the president to use "all means necessary and appropriate" to bring about the release of any U.S. and allied personnel who are detained or imprisoned by the court.
The measure does, however, give the president wide discretion to waive many of its provisions in the interest of national security.
In addition, the State Department has undertaken a campaign to obtain agreements from other nations not to extradite to the court U.S. government employees accused of war crimes and other violations under the Rome statute.
A State Department official confirms that 12 such agreements had been reached by Oct. 1 in accordance with Article 98 of the Rome statute. In late September, the European Union--a center of support for the ICC--authorized its members to reach agreements with the United States.
The State Department official says the United States "is not trying to destroy the court or to undermine the court in any way," but also reaffirms the U.S. intention to remain free of ICC jurisdiction and to continue to seek the agreements.
International law experts say the U.S. government's opposition to the ICC is bound to have a detrimental effect.
"I don't think it will kill the court," says David Tolbert, director of the ABA's Central European and Eurasian Law Initiative who is based in Washington, D.C. "It will weaken the court in a number of ways."
Legal experts disagree on the merits of U.S. concerns about the ICC's potential jurisdictional reach.
"In Rome, I don't think people recognized the radicalism of what was done," says Wedgwood. "My model [for ICC jurisdiction] would have been to start slow and take referrals from the Security Council."
But Tolbert maintains that limiting the court's jurisdiction would have seriously compromised its credibility. "The principle of universality is a pretty important one and, I think, worth preserving," he says.
The debate "is more about politics than the real exercise of jurisdiction," suggests Tolbert. "I can't foresee in my wildest dreams--or maybe it's nightmares--an American being brought before the court."
CAREFUL FIRST STEPS
Legal experts generally agree that the international Criminal Court's early performance will be crucial to establishing credibility with the United States and other nations.
"Two developments above all would help alleviate the U.S. government's anxieties," says Diane F. Orentlicher, co-director of the Center for Human Rights and Humanitarian Law at American University's Washington College of Law in Washington, D.C.
First, says Orentlicher, "is the appointment of a first-rate prosecutor and similarly well-qualified judges." Also crucial, she says, "will be the first set of cases taken up by the ICC.
"If the court keeps its sights squarely on cases that entail the most serious crimes of concern to the international community--and takes up these cases only when there is a clear failure of justice at the national level--the United States will obtain persuasive assurance that its anxieties are unfounded." The Assembly of States Parties is expected in February to elect a prosecutor and 18 judges, who will be divided among pretrial, trial and appeals divisions. The nomination period will close at the end of November.
Some lawyers are urging that more steps be taken to provide adequate legal services to defendants in ICC cases. One step, they say, might be to create an office of defense counsel.
The International Criminal Bar has been created to work on these issues, says Stoelting. He serves on the steering committee that is drafting the organization's constitution after representing the ABA at meetings where the group was formed earlier this year.
While ICC proponents acknowledge that many nations remain cautious--few states in the volatile Middle East and central Asia have ratified it, for instance--they focus hopes for the court's future largely on its relationship with the United States.
"I can't imagine the United States becoming a party to the Rome statute in the foreseeable future," says Orentlicher. "The real question is whether the United States can move beyond its current policy of hostility to the court."
Quietly, even some U.S. officials hint that attitudes could change if the court proves itself. "A lot of it is just going to be time," says a State Department official. "We will have to see how the court develops."
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