On
July 1st,
an International Criminal Court -
without America
By
Jonathan
Power
June 28, 2002
LONDON - In the week before the International Criminal
Court comes into formal existence, the United States has
decided to pick a fight with it - and potentially a
damaging one. In the UN Security Council the U.S. has
said that it is not going to vote for the renewal of the
mandate of the Nato peacekeeping force in Bosnia unless
the Security Council rules that American soldiers be
given a solemn assurance that U.S. peacekeeping forces
could never be prosecuted for war crimes.
This American hostility will hang like a heavy cloud
over the ceremonies that will mark the opening of the
Court's doors on July 1st. To their immense credit the
two other Western Security Council members, Britain and
France, are adamant in refusing to countenance the
American request. All the member states of the European
Union regard the Court as an historic breakthrough in the
building up of a global rule of law, a chance to deter
those who seek to wreck havoc with their opponents by the
use of war and by the horrors that often war's corollary-
mass executions, torture, rape and the murder of the
innocents. If the U.S. which initially was an important
advocate of the Court's creation - before the Pentagon
had the good fortune to best president Bill Clinton while
his guard was down at the time of the Monica Lewinsky
affair- now decides to confront a united Europe on this
issue it could lead to a transatlantic political crisis
of a dimension far worse that the steel tariffs' issue of
earlier this year and more in the league of the Suez
crisis of 1956.
The European Union and the other supporters of the
idea of the Court in the four corners of the world
conceded nearly all that the U.S. demanded during the
negotiations on the statutes of the Court in Rome in
1998. The one concession, however, they were not prepared
to make was on the question of the Court's jurisdiction
over UN peacekeepers. Indeed, Europe and the rest can be
justly criticised for having given away so much and then
deciding to dig in their heels on what is a relatively
minor issue.
All that is left of the Court now is what the British
lawyer, Geoffrey Robertson, rightly described in his book
"Crimes Against Humanity" as " a permanent ad hoc
tribunal dependent on references from the Security
Council to investigate countries like Rwanda and
Yugoslavia where none of the combatants have superpower
support." The Court, as with the ad hoc court in The
Hague now trying Slobodan Milosevic, will only have
jurisdiction when given a remit by the Security Council
acting under Chapter 7 of the UN Charter, or by the
consent of the state of which the defendant is a national
or in which the crime is committed. There is now no
question, as was originally intended, of the Court having
universal jurisdiction, in other words being allowed to
prosecute whoever it has good reason to believe it has
committed a war crime, wherever they live.
With or without America, July 1st will still be a day
to celebrate - the Hague tribunal currently prosecuting
those who committed atrocities in the Yugoslav wars will
now in effect be transmuted into a permanent institution.
"In this day and age", as was said in an apt remark by
East Timor's Nobel Peace Prize laureate, Jose
Ramos-Horta, speaking about Indonesia's former head of
the armed forces, General Wiranto, "you cannot kill
hundreds of people, destroy a whole country, and then
just get fired."
The world at the onset of the twenty first century is
a very different place that it was after the carnage of
the First World War in the early years of the last
century. Then no political leader, despite the creation
of the League of Nations and the World Court, thought for
a moment that international institutions might tell
states how to treat their citizens. Individuals had no
rights in international law. Today they have many and the
International Criminal Court is but the latest advance in
a field that encompasses an enormous range, from the
rights of women and children to the right not to be
tortured. The ideas of the Enlightenment, most perfectly
expressed in political form in the American Constitution,
are now writ large across most of the world, a sign that
the Enlightenment was not just a dream of European and
American thinkers but a way of looking at human life that
was essentially practical and doable, and in the end
would make the world a much better place.
The Court will surely give future tyrants and their
generals pause for thought. It will be a decade or so
before we will be able to make the first hesitant
judgements about whether this interlude for reflection is
translated into political and military restraint. No one
will be watching this process more closely than America.
If over time American opinion decides that the Court has
acted sensitively and with good judgement - and that
indeed wars and atrocities have probably been averted -
it would be difficult to imagine that America would want
to stay out of its fold for very much longer.
I can be reached by phone +44
7785 351172 and e-mail: JonatPower@aol.com
Copyright © 2002 By
JONATHAN POWER
Follow this
link to read about - and order - Jonathan Power's book
written for the
40th Anniversary of
Amnesty International
"Like
Water on Stone - The Story of Amnesty
International"
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