Global Policy Forum

By Sylvia de Bertodano

Last year was an historic one for international justice -it brought the long-awaited establishment of a permanent International Criminal Court (ICC) in The Hague. As the Assembly of States Parties -the body of nations that have ratified the ICC statute -gathers in New York next month to elect its judges, the United States' seat will be conspicuously empty. The Bush Administration has refused to ratify the statute and has worked hard in recent months to undermine it. It has obtained a Security Council resolution exempting its peacekeepers from prosecution by the ICC; and it has attempted to secure bilateral agreements with individual countries, promising not to extradite US citizens to the new court.

The US Government fears that the ICC brings with it the danger of politically motivated prosecutions. It complains that the court is unchecked by an elected body or by the UN Security Council. It advocates instead accountability through alternative mechanisms: if domestic processes are not available, the international community can assist on an ad hoc basis. This can entail either setting up a costly ad hoc tribunal along the lines of the international tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR); or the cheaper alternative of building hybrid courts within a state, with international and national participants, as in East Timor and Sierra Leone.

However, current alternative mechanisms suffer from fundamental flaws. The ICTR provides a compelling illustration of this. Established in 1994 in the wake of the Rwandan genocide, the tribunal suffers from major operational problems. Despite the fact that most of the main suspected architects of the genocide are in custody, verdicts have been handed down on only nine defendants, while another 51 detainees are still on or awaiting trial. Yet the ICTR's 2001 report to the Security Council projects 136 new accused by 2005. At its current rate of completion this would keep the court trying cases for more than 150 years.

The ICTR cannot even claim to have demonstrated political independence. In November 1999 its Court of Appeal ordered the dismissal of charges against one suspect. The Rwandan Government immediately suspended co-operation with the tribunal. Three months later the court reversed its decision. It stated that the first decision was based on incorrect factual circumstances. This did not assuage fears that political pressure was the real cause of the change.

Meanwhile, halfway across the globe, trials of crimes surrounding the 1999 referendum on independence in East Timor take place. Here the UN, unwilling to face a confrontation with Indonesia, placed reliance on promises that suspects would be tried in Jakarta; and hybrid courts, composed of national and international judges, were established by the UN to try suspects in East Timor.

It is becoming clear that accountability will not result from either process. Under international pressure, the Indonesian authorities have reluctantly charged 18 political and military leaders with failing to prevent the violence, when the conclusion of numerous bodies, including the Indonesian Human Rights Commission, was that they had orchestrated it. In a court that is demonstrably partial to the defence ten of the 13 defendants tried to date have been acquitted; the three convicted have been given derisorily low sentences of between three and ten years' imprisonment.

The UN-sponsored trials in East Timor's capital, Dili, have failed to bring justice even to the low-ranking suspects within their jurisdiction. The neglected and underfunded system is blighted by apathy. Appointments to key positions in the judiciary are left vacant, and the court process is paralysed as a result.

The experiences of Rwanda and East Timor show a poor record of what happens when the international community assists in trials under ad hoc procedures. The only court that has enjoyed any recent success is the ICTY, where Serbia's former President Slobodan Milosevic is on trial. But for many years the ICTY suffered crippling problems in obtaining the high-ranking suspects that it had indicted. The only reason that it is now able to try Milosevic is the change in the political regime in Serbia in 1999 -not something for which the tribunal can take credit.

The further overriding problem with ad hoc justice systems is that they are by nature partial rather than universal. While Rwanda and the former Yugoslavia have their own dedicated tribunals, East Timor is left to struggle with limited and ineffective international assistance. Others lower down still on the scale of political priorities -Chechnyans, Chileans, Kurds -suffer atrocities without the hope of any international justice.

Whether an international criminal court can avoid these problems and provide an effective, independent and universal process remains to be seen. However, if it is successful, it will be because it has independent prosecutors and judges working in a single international system that is free from political pressure, and accountable to no political body. It should be able to prosecute the perpetrators of international crimes, wherever and whoever they may be. In fact the same factors that the US is unable to stomach are essential to the court's success. If the US will not support the new ICC in its status as an independent judicial body, it must also relinquish its claim that it is seriously committed to accountability for the gravest international crimes.

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