International Criminal Court Comes to Life

By Ian Black

Guardian
March 11, 2003

Lofty hopes for new era of world justice are balanced by fears that boycotting states will sap new body's authority

Under the watchful eyes of Kofi Annan and the Queen of the Netherlands, 18 judges are to be sworn in today as the most important human rights institution the world has seen in half a century is formally inaugurated.

The ceremony in the Dutch parliament marks the coming of age for the international criminal court - and the fulfilment of a dream that began with the Nuremberg and Tokyo tribunals for Nazi and Japanese war criminals, and later found expression in the work of the UN tribunals for the former Yugoslavia and Rwanda.

But the ICC will be a new and, crucially, a permanent feature of the geopolitical landscape. It faces enormous challenges, including powerful American opposition, the task of choosing a prosecutor - and deciding who to put in the dock.

The court's job is to provide justice for genocide, crimes against humanity and war crimes, so that future victims have somewhere to turn to when national systems fail. Bruno Cathala, the French judge who has been overseeing the ICC since it came into existence last summer, can hardly contain his excitement. "This is about globalised justice," he said. "No one has ever built an international criminal court before. We are going to fill the impunity gap."

Getting this far has been a long haul. The US, China, Russia and India remain opposed. Neither Iraq nor Israel has signed up. And Washington continues to pick off small countries to sign deals ensuring that American personnel are guaranteed immunity.

But 89 other states now back the court, and the moment is approaching when the first pre-trial investigation will be launched: its likely target is the Congolese rebel leader Jean-Pierre Bemba. The Bemba case falls into the category of those where a "state party" to the ICC statute - in this case the Democratic Re public of Congo - is either "unwilling or unable" to prosecute a suspected war criminal.

"At the moment the ICC is a highly abstract concept, and it can only start to be real when it gets its teeth into actual cases," said Steve Crawshaw, of Human Rights Watch. "That's when it will start to be a highly important player on the world stage."

Before that, though, a prosecutor must be found."His or her decisions will have a crucial impact on the court's development and credibility," says the Dutch government, an enthusiastic supporter. "It is vital to find someone whose credentials are impeccable."

This is proving difficult. Richard Goldstone, the first prosecutor at the Yugoslav tribunal, does not intend to leave his native South Africa. Carla del Ponte, the current incumbent, wants to see the Milosevic case through. Other top candidates are holding back.

High politics and great sensitivities are at work here: the judges' bitterly fought election produced seven women and 11 men from Africa, Asia, the Caribbean, eastern Europe, Latin America, North America, and western Europe.

"We would not like to see this court becoming a court to prosecute poor countries or just Africa," warned the South African judge Navanethem Pillay, who is the president of the Rwanda tribunal. Staff numbers are to jump from 40 to 200 by the end of the year, but a big concern is to avoid creating a bloated and costly bureaucracy. "We need a 'plug-and-play' court that we can take anywhere in the world so that we don't have to bring everyone to the Hague," explains said Mr Cathala, the former deputy registrar of the Yugoslav tribunal.

"We are not trying to create a judicial empire here; quite the opposite," said Mr Cathala. "Paradoxically, one measure of our success will be not doing too much." Under the principle that the ICC will serve only as a court of "last resort", other cases are likely to be generated by the conflicts in Colombia and Sierra Leone. Since jurisdiction is not retroactive, crimes committed before last July cannot be tried.

No one claims the court will be perfect. Final negotiations saw its statute weakened, so it can try only crimes committed by nationals of governments that ratify the treaty, or in the territories of ratifying states.

Some also doubt that its ambitions can be realised as long as the US stays out. Washington insists it is not trying to undermine the court, just to protect US personnel abroad from an "unaccountable" prosecutor. Russian actions in Chechnya, like Israel's in the occupied Palestinian territories, will also be off limits for the foreseeable future, risking accusations of selective justice.

The UN security council can ask the ICC to launch investigations. But it will not have power to coerce, as it did when forcing Libya to give up the Lockerbie bombing suspects. No wonder then, despite Mr Cathala's optimism and the likelihood that more countries will eventually join, that the future looks so uncertain.

"The ICC is likely to survive, but without the US and other key countries it is unlikely to be very significant," a leading American legal expert said. "It will trundle along, but they are not going to be able to crack tough nuts like getting Milosevic to the Hague because they will not have the diplomatic and institutional muscle to do it. "I continue to be pretty sceptical about how much diplomatic china some of the European states are prepared to break in the interests of international criminal justice."

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