The stakes were high and a sense of wider responsibilities should have
prevailed over petty self- interest. It was a question not
simply of establishing an ad hoc tribunal such as those
for Rwanda or ex-Yugoslavia but a permanent
international court. A court which would have universal
jurisdiction, be totally independent of governments,
have the power to punish the most serious crimes and
act as a deterrent to them taking place at all.
The conjunction of the moral force of the fight against
injustice and the political imperative for the
strengthening of
international peace
should have meant that
self-interest was put to
one side by states at the
conference. The vast
majority of states did
just that and many of
them (the majority of the
African states and those
of Latin America for
instance) fought to the
end for the
establishment of a
strong and independent
court. Although, on the
other hand, the
opposition of others such
as Iraq, the Sudan, Iran,
China and Burma was
not surprising, what was
more distressing was the
stance of France and the United States who like to think of themselves as
democratic states which respect human rights. It was
they who were behind the adoption of the most
restrictive clauses - and it has to be said, the most
unacceptable - of the statute of the International
Criminal Court.
Certainly, there is cause for celebration that the first
important step has been taken in establishing the
Court on a permanent basis, something long called for
by all those who believe in the primacy of justice over
force. There are also several generally positive aspects
of the treaty adopted which should be welcomed. It is
true that the jurisdiction of the Court has been made
simply “complementary” to the criminal courts of the
states themselves. It is to try crimes of genocide,
crimes against humanity, war crimes and crimes of
aggression to be defined at a later date (without
retrospective effect). The Prosecutor, charged with
setting in motion enquiries and legal proceedings, will not be limited to acting solely at the behest of the
signatory states or the Security Council. Under the
aegis of a preliminary court hearing, he can have a
case referred to him following information received
principally from Non-Governmental Organisations
NGOs). The victims will have the chance to put
forward their opinions and concerns. The list of
sentences excludes the death penalty, the maximum
penalty in the case of the most serious crimes being
life imprisonment. The duty of signatory states to
cooperate fully with the Court so as to ensure the
smooth working of investigations and legal proceedings
was affirmed and framed in the statute.
However, at least three
clauses are particularly
open to criticism. The
first and most alarming
allows a state party to
the treaty to declare that
it will not accept, for a
period of seven years
after the statute comes
into operation, the
jurisdiction of the court
for war crimes committed
by its nationals or on its
territory. Moreover, this
supposedly “interim”
measure can be
extended for an even
longer period since far
from automatically
lapsing at the end of the
seven years, it is simply
envisaged that it will
have to be “re-examined”
at a later conference to
revise the treaty. The text cited (article 124) was added at the last minute and
was largely the work of the French delegation which
had no qualms about presenting it, in the words of its
foreign minister, as “a good compromise” even though
it only reflects French reservations about the Court’s
jurisdiction in war crimes cases. In this instance, there
was no need whatsoever for “compromise” in order
allow a signatory state to unilaterally assume the right
to kill without sanction for seven years. France’s
responsibility for this clause was not one of the
country’s finest hours. Whilst the necessity of the
creation of an international criminal court was
accepted by the participants in the Rome conference,
it is appalling to see that the treaty allows the most
frequently committed crimes to continue to go
unpunished.
The second disappointing aspect of the treaty (article
12 of the statute) relates for similar reasons to the
fact that the jurisdiction of the court, far from being universal, will only apply in the following conditions :
either the state on whose territory the crimes were
committed or the state of which the accused is a
national must be a signatory to the treaty or have
accepted the authority of the court by a special
declaration. Apparently only the Security Council would
be able to lift this important restriction and in each
instance refer cases to the Court which fall within its
area of competence. As a result the Pol Pots, Sadam
Husseins, Karadjics and others will continue to go
unpunished, as will the majority of those responsible
for the most appalling crimes and massacres. Given
the failure of absolute universality to be adopted,
however, many participants at the Rome Conference
including all the NGOs asked for two other states to be
added to the list of those able to authorise the Court
to act : that to which the victim belonged and the one
in which the accused was to be found. This latter
criterion would undoubtedly have been very useful
since many criminals seek
refuge abroad.
Unfortunately, even this was
not adopted. Thus, without a
political decision dependent
on the goodwill of the
Security Council, the field of
cases in which the
international criminal court
is empowered to act risks
being reduced to almost
nothing.
A third point to be regretted
also relates to the role of the
Security Council. Article 16 of
the treaty provides for the
possibility of the Council
preventing the Court from
starting or continuing with
enquiries or legal
proceedings for twelve
months, a period which can
be renewed without limit.
Now, whilst it is quite understandable to take into
account the complicated necessities of diplomatic
negotiations regarding a cease-fire or a peace
agreement, that would only justify a suspension of the
Court’s activities on an exceptional basis, for a limited
period and with regard solely to the serving of arrest
warrants or charging suspects. On the other hand, it is
not acceptable for the work of the Court to be brought to
a complete halt for an indefinite period simply on the
say-so of the Security Council and with no chance for the
Prosecutor, for instance, to carry out even on a
preliminary basis the necessary enquiries to prevent the
loss of validity of proof or to collect evidence. Here, as
with the question of its independence the Court’s
sphere of action has been seriously reduced.
Thus, it must be stressed that whilst the creation of an
international criminal court is in itself a source of
satisfaction, it’s credibility, independence and the legitimacy of its jurisdiction don’t at present seem to be
assured by the statute adopted. Despite the remarkable
work carried out by NGOs, once again political
considerations largely won out over judicial ones. This is
all the more to be regretted because a majority of the
states participating in the Rome conference were in
favour of an international criminal court which would be
fit to meet the challenges facing it. However, once again,
American power applied increasing pressure and played
on divisions or second thoughts to obtain concessions.
The aim was to deprive of as much substance as
possible a Court to which it was opposed because it
constituted a possible threat to its desire for hegemony.
With the support of accomplices (one of which
unfortunately was France) the United States succeeded
in corrupting a text to which it was anyway opposed,
because it found the final compromise still gave too
much weight to justice rather than “realism”. It is
difficult to imagine a more shocking scenario than that
where the decisive influence of a State was brought to
bear on the drafting of a
treaty which, at the end of
the day, it refused to sign
anyway. In conclusion, the essential
success of the very creation
of an International Criminal
Court is only a first step and
the fight must continue to
build a strong international
legal system. First of all,
states must be encouraged
sign and ratify the treaty as
quickly as possible since it
will only come into force when
it has been ratified by sixty
states. Equally, it is already
important to look ahead to
the conference on revision of
the treaty which is scheduled
to take place seven years after it comes into force. Indeed, it will be imperative to
make sure that the conference deletes the most
outrageous parts of the text adopted at Rome and
adopts whatever improvements are necessary. At no
time should the essential aim be forgotten : never forget
the millions of victims of the worst outrages, to do
everything possible to bring those responsible to justice
and to prevent such crimes occurring again by means of
a strong international legal system. In the struggle to
come, we must never lose sight of the basic question :
are you for or against bringing the guilty to justice ? Our
opponents use their objections to mask their real views.
Patrick BAUDOUIN
President of the FIDH