Global Policy Forum

By Chris Stephen

New court expected to deter leaders from doing what they please in their own countries.

For supporters gathering for the grand opening of the International Criminal Court, ICC, in The Hague next week, the 1990s may be remembered as a golden decade for human rights. In between the fall of the Berlin Wall and September 11, the world got three international war crimes courts, plus a host of smaller tribunals. And, most important of all, activists used these years of optimism to persuade governments to agree to a whole raft of human rights laws.

The convention banning land mines is just one example. Just as important, perhaps, was the decision by British law lords that former Chilean president Augusto Pinochet could be tried under the provisions of the international torture convention.

Looking back, it seems like the fall of the Berlin Wall opened a door. Across the world, the early 1990s saw democracy breaking out everywhere – in the former communist world, in South Africa and across Latin America. The ICC story started to roll back in 1989, when the Cold War, was thawing fast.

Trinidad and Tobago got it going: they persuaded the UN to revive a commission set up after World War Two to look at creating an international criminal court which could build on the work of the Nuremberg and Tokyo war crimes tribunals. This commission had got nowhere in four decades. Now, with the bi-polar world starting to break down, and everyone keen to be friends, it took off.

Trinidad and Tobago wanted it not for war crimes, but to find a way of hitting international drug cartels using the Caribbean as a stopping-off point between South America and the United States.

The UN commission was still shuffling bits of paper when Saddam Hussein invaded Kuwait in 1990. There was talk of setting up a war crimes court to try him, from, among others, the then American president, George Bush senior. The talk came to nothing – first of all, there was no way to arrest Hussein. But Bush did go on to proclaim that the coalition which ousted Hussein was evidence of a New World Order.

Almost immediately, war exploded in the Balkans. When, in 1992, the first TV pictures were shown of prison camps where Bosnian Muslims were being starved, tortured and killed, the UN Security Council decided to act.

No one wanted to commit troops, so they grasped at another idea – setting up a war crimes court. They did not wait for the UN commission, but set up an ad-hoc court – the International Criminal Tribunal for Former Yugoslavia, in 1993. The following year, an even worse genocide, in Rwanda, saw the Security Council set up a second ad-hoc tribunal to cover that war.

Meanwhile, the UN commission plodded on, from committee to working group to report to committee. Drawing on the experience of the two tribunals, it finally presented a partly completed blueprint for the new court in 1998. But by then UN member states, happy to see ad hoc tribunals take shape, were less happy at the prospect of a full time war crimes court – which might, one day, come after them.

One by one, governments got cold feet. What may have saved the ICC is an unprecedented campaign by hundreds of human rights groups, for whom this court had become a central theme. For decades, these groups had been on the outside looking in, trying, and usually failing, to influence the laws of individual governments. Now they saw their chance: the ICC represented the first attempt at a truly global war crimes court in the history of mankind. "We had this feeling that we had waited fifty years for it, and if we let this pass, we might have to wait another fifty years," one human rights official told me recently.

The result was huge lobbying pressure put on member states, particularly Britain, whose new Labour government had publicly stated its commitment to what it called an ethical foreign policy. The pressure worked – partly. The ICC convention was signed. But so many nations refused to sign it, including, crucially, the United States, that the new court was forced to divorce itself from the UN – the body that had created it.

There was another ironic twist in the tale – the final plan had no room in it for prosecutions against drug cartels, the reason why the plan had been brought back to life in the first place. However, the court did find support. European Union nations embraced it. And so did the South American democracies, regarding it almost as an insurance policy against military coups. Even so, world leaders did not exactly fall over themselves to support the ICC. It took four years until, in 2002, the court finally got the minimum 60 nations it needed to come into being. And the trouble did not stop there. Although more nations continue to join – it is now up to 87 and rising – this new court has created an explosive row between members and non- members. This is because the court can prosecute not just those from member nations who've committed war crimes, but also anyone who does so on their soil – even if they are from a country that refuses to sign.

That has put the United States in the firing line – as the nation with peacekeepers in more countries than anyone else in the world. And then came September 11. In many people's eyes, the door of hope that opened with the fall of the Berlin Wall was slammed shut by those planes flying into the Twin Towers.

After that attack, the world is once again living in fear. In this climate, world leaders are reluctant to place any limits on their security forces. The dark arts of assassination, torture, detention without trial and subversion are back in fashion. Most nations feel they are acceptable if there is some chance they may prevent a terrorist attack that could unleash disease or nuclear dust on unsuspecting populations.

In this atmosphere, human rights groups say that if the ICC did not already exist, it would have zero chance of being created today. But, of course, it does exist. And its architects were clever (or, if you are an opponent – devious). They made sure that the laws of the ICC could not be ignored.

They had seen how institutions such as the Council of Europe and the Organisation for Security and Cooperation in Europe have become paper tigers – because member states that don't comply with their rules get away with it.

Those who designed the ICC treaty made sure that full membership required a nation not just to sign it, but ratify it – in other words incorporate ICC law into national law. This is no small step. It means that members cannot refuse to hand over a suspect hiding in their country – as they will be breaking not just ICC statutes but their own national laws.

While many have welcomed the new court, it continues to have numerous enemies, and many members whose governments are now reluctant partners. Yet – here it is. We may have returned to the same age of Realpolitik we thought we had left behind with the end of the Cold War. But now, for better or worse, there is also a war crimes court with the power to break that most sacred of rules, which has governed international affairs for centuries – the right of a government's leaders to do as they please in their own countries.

Chris Stephen is IWPR's bureau chief in The Hague

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