Global Policy Forum

By Amos Tincani*

Women systematically raped as a war tactic, famished prisoners in concentration camps, besieged city dwellers regularly shelled and sniped at, an entire town's male population rounded up and massacred under cover of the night, hundreds of thousands of "neighbours" hacked and clubbed to death . . . those scenes haunted TV rooms around the world at the end of the 20th century.

The horrors of post-Cold War wars in the 1990s, in particular the massacres perpetrated in the former Yugoslavia and the Rwanda genocide, together with the overwhelming feeling of shame stemming from the inability of the international community to prevent either, led to the establishment of the first ad hoc international criminal tribunals since Nuremberg and, eventually, to the creation of the International Criminal Court (ICC) on July 1, 2002, once its statute adopted in Rome in 1998 entered into force. There are at present 139 signatories and 97 State Parties that have ratified the Rome Statute, including all 25 members of the European Union, more than half of CARICOM members and a clear majority of Eastern Caribbean countries (St Lucia is pending ratification while St Kitts and Nevis and Grenada are still to sign).

The European Union is a vocal supporter of the ICC, "as a valuable instrument of the world community to combat impunity for the most serious international crimes", and is actively promoting world-wide ratification and compliance with its statute's provisions. The European Union also contributes some 75 per cent of the ICC budget and is providing assistance to NGOs promoting ratification and closely monitoring the ICC's initial work.

However, more than half of international community members have not become State Parties yet, including some key actors such as China, India, Russia and, most importantly, the United States of America. In fact, the United States, which had, like the Russian Federation, signed the Rome Statute in 2000, formally communicated to the court on May 6, 2002 that it did not intend to become a party and consequently had no legal obligation arising from its signature. At the roots of such a decision there is concern that American citizens may be subject to "politicised" prosecution by the ICC.

In line with that decision and that concern, the United States has been actively encouraging third countries to conclude Article 98 agreements, also known as non-surrender agreements, aimed at preventing the eventual surrendering to the Court of United States nationals present in those countries that might be subject to a surrender request from the ICC. A number of countries have signed such agreements, including Antigua and Barbuda in the Eastern Caribbean. Those that have not have seen United States military cooperation severely curtailed in recent times, which in turn may have contributed to some Caribbean countries delaying their signature and/or ratification of the ICC Statute.

As concluded by the Council of Ministers on September 30, 2002, the European Union has expressed interest in developing "a broader dialogue between the European Union and the United States on all matters relating to the ICC, including . . . the desirability of the United States re-engaging in the ICC process . . . and the development of a relationship entailing practical cooperation between the United States and the Court in specific cases . . . ."

Regarding Article 98 bilateral agreements in particular, the European Union considers that "entering into those agreements, as presently drafted, would be inconsistent with ICC States Parties' obligations with regard to the ICC Statute and may be inconsistent with other international agreements to which ICC State Parties are parties".

No ‘politicised' prosecution

The European Union has consequently made demarches vis-í -vis other State Parties, including in the Eastern Caribbean, on its views and on an agreed set of "Guiding Principles" that aim at ensuring that non-surrender agreements ". . . include appropriate operative provisions ensuring that people who have committed crimes falling within the jurisdiction of the court do not enjoy impunity".

What does all of this mean? Why the United States animosity vis-í -vis the ICC? Should Eastern Caribbean countries ratify this treaty, if so, many international powers have not? Should they sign bilateral agreements with the United States?

The Rome Statute establishing the ICC goes at great lengths in ensuring that no "politicised" prosecution may ever occur. To begin with, the ICC only deals with "the most serious crimes of concern to the international community", namely genocide, crimes against humanity (such as torture, rape, enforced disappearances, extermination or enslavement), war crimes and the crime of aggression (once provisions consistent with the United Nations Charter are adopted).

So it is only the most heinous crimes, those that revolted the world's stomachs in the 1990s, that may be prosecuted by the ICC. Even in relation to those crimes, specific cases are not admissible if they are being investigated or prosecuted by a State which has jurisdiction over them, unless the decision not to do so is due to unwillingness or inability of such State genuinely to prosecute. So, the ICC works in cooperation and in complementary fashion to national criminal jurisdictions, it is a court of last resort, not designed to replace national jurisdictions.

Finally, the Court does have the power to request assistance by State Parties in the discharge of its duties, including with respect to surrendering of persons under investigation that happen to be in their territories; of course only if the States with jurisdiction over those persons are unable or unwilling to investigate of prosecute the cases.

However, under Article 98 of the ICC Statute the Court cannot even proceed with a request for surrender of a person enjoying diplomatic immunity, or if under international agreements between such State Party and a "sending State" the latter's consent is required for the surrender. This is the provision on which the United States is basing its non-surrender agreements with third countries.

In short, countries which respect the rule of law and are capable of dealing with crimes committed by its citizens have nothing to fear. Rogue regimes or criminals operating in failed states are the real target of the ICC.

While the European Union understands the concerns of the United States and of other countries shouldering a significant portion of international community's efforts at peace and security, we firmly believe that it is by supporting the work of the Court and by ensuring that it actually discharges its duties in full accordance with the spirit and the provisions of the Rome Statute that the shroud of impunity long concealing abhorrent acts of violence will finally be lifted. European Union Member States, who also make key contributions to international peace and security, have predicated with their example by signing and ratifying the Rome Statute, hence potentially subjecting their citizens to the same "politicised" prosecutions. We have staked the security of our citizens involved in peace efforts on our confidence in the Court's professionalism and on our own capacity to deal with eventual atrocities committed by one of ours.

Conscious of the United States unique position in the world, we will keep exhorting our American friends to follow suit, so that the missed opportunity of the League of Nations is not repeated with this worthy endeavor, and not to link the conclusion of bilateral agreements with badly needed security assistance to vulnerable countries.

As regards the Caribbean, we will continue strongly encouraging countries in the region, some of whose jurists have so much contributed to the establishment of the court, to become State Parties and, if they feel the otherwise understandable need to sign bilateral agreements with the United States, to do so in a way that does not undermine the common objective of preventing impunity for the most abject crimes.

The ICC deserves the support of all of us. Let's not deny it.

About the Author: Amos Tincani head of the EC delegation to Barbados and the Eastern Caribbean.