March 11, 2003
America is not only at odds with Europe over Iraq—the newly launched International Criminal Court is another bone of contention. The fight over the scope of its jurisdiction has obscured its largely admirable ambitions.
It all sounds so depressingly familiar. The United States stood toe-to-toe against other countries, led by France, in the United Nations Security Council. Emotions were running high. Weeks of negotiation seemed to make matters worse rather than better. The explicit threat of a veto hung in the air. Time was running out. However, the disputed issue in last July's high-stakes stand-off at the UN was not Iraq, but the role of the new International Criminal Court (ICC). And the conflict in the council last summer had a happier outcome than now looks likely for the current quarrel over Iraq—a compromise resolution was passed unanimously, and everyone walked away relieved.
On Tuesday March 11th, despite continued and fierce American opposition, the ICC is due to be launched formally in The Hague, where it will be based, with a grand ceremony marking the swearing-in of its first 18 judges. Although the judges will be sworn in this week, most other staff have yet to be hired, and the court will probably not take up its first case until next year. Backed by all EU countries, and dozens of others around the world, the court has been established to handle the worst cases of genocide, war crimes and mass atrocities against civilians when no national court is able or willing to do so. In a world torn by bloody conflict, there seem no shortage of cases to keep the court busy once it is ready to hear them.
And yet it remains an open question whether the court can succeed with the world's superpower so hostile to it. The compromise reached last July in the Security Council, giving Americans involved in UN peacekeeping missions immunity from the court's jurisdiction, expires this July. If anyone in the council is still talking to each other by then, another bust-up is possible. A refusal to renew the resolution could well provoke the United States to repeat its threat to veto all UN peacekeeping mandates.
America has campaigned against the court because it fears that it will be used to mount politically motivated prosecutions of American government officials. The court's supporters scoff at this, insisting that there are enough checks and balances in the treaty setting up the court to make sure that it operates responsibly. Under Bill Clinton, the American government was concerned about the potential for the court to constrain America's freedom of action abroad, and so the Clinton administration played a key role in shaping the court's treaty. Just before leaving the White House, Mr Clinton signed the treaty to keep America involved in the process of establishing it. But George Bush has taken a much more hostile line. Last year, his administration revoked America's treaty signature, and then lobbied vigorously to win absolute legal immunity for Americans from the court's jurisdiction.
The United States has not been alone in opposing the court. The world's most brutal dictatorships, of course, have not been very keen on it. But two other democracies, India and Israel, have also shared America's suspicions. China and Japan have spoken in support of the court, but not yet signed the treaty. Russia has signed, but not yet ratified it.
Nevertheless, America's campaign against the court has had mixed results. For one thing, its opposition does not seem to have slowed the pace of new ratifications. Since last summer's Security Council quarrel, 13 more countries have ratified the treaty, bringing the number of countries that have voluntarily joined the court's jurisdiction to 89. Many of these are close friends, or even clients, of the United States, such as Colombia and South Korea. Last month, even Afghanistan ratified the treaty.
The United States has managed to win agreement from 24 countries never to surrender to the court any Americans who happen to be within their borders, offering the same in return, and is pushing many other countries to sign similar deals. America hopes that a web of such agreements, which it claims are sanctioned under an obscure provision of the court's treaty called Article 98, will in effect give it the global immunity from the ICC's jurisdiction to which it insists it is entitled. The EU tried to impose a ban on any such deals between America and its own members, as well as central European countries due to join the EU. But in the face of concerted American pressure, this common front collapsed last autumn.
And yet, even America's Article 98 campaign has not gone smoothly. Many of the countries that have signed such bilateral agreements have not, in fact, joined the court—and so would not be required to surrender suspects to it. Despite the EU's inability to agree a binding common position last year, no EU country has yet signed such an agreement with America. The only EU-candidate country to do so, Romania, has not submitted the agreement to its parliament for approval. In any case, many legal experts argue that these agreements have been so broadly drawn by the United States that the ICC's judges probably will not be able to respect them.
Whatever the doubts about the efficacy of America's diplomatic and legal strategy, its unrelenting opposition has cast a shadow over the court. Moreover, the court also faces plenty of other hurdles. The judges are, as hoped, an eminent group, with some coming straight from the UN's ad hoc international tribunals for Yugoslavia and Rwanda (which the United States has supported). But the countries setting up the court have not yet been able to agree on a chief prosecutor. Another effort at choosing one will be made next month.
Whoever wins the job will require diplomatic as well as legal and managerial skills. The court's cases will be, almost by definition, complicated and politically sensitive. Once its remaining key personnel are appointed, every decision to prosecute, or not to prosecute, is likely to be highly contentious. Some 200 suggestions for prosecutions have already been sent to the court. Early candidates are thought to be rebel commanders in Congo and Cí´te d'Ivoire. The International Bar Association, an umbrella organisation of lawyers' groups, has called for the prosecution of Robert Mugabe, Zimbabwe's president.
Once a prosecution is brought, the trials themselves are bound to be difficult. The small team of bureaucrats who have already spent months preparing for the court's launch want to apply lessons learned from a decade of experience at the Yugoslav and Rwandan tribunals, which have been criticised for the length and expense of their trials. The ICC's proceedings, they hope, will be more efficient, and focused on the leaders responsible for atrocities, rather than on the small fry.
These are grand ambitions. But the court itself can do little to make them happen without the active support of national governments, who will have to provide it with evidence, enforce its rulings and, most critically of all, deliver suspects to its courtroom. Dozens of countries have said they will do these things, but that promise was easy to make when the court was just a theoretical possibility. The day is fast approaching when the court's backers will have to prove that their support is real, and not just a pious pledge.
More Information on the ICC
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