National 10 (Spotlight Weekly)

International Criminal Court: Importance and Challenges

By LALIT BAHADUR BASNET

Despite continued American opposition, the International Criminal Court (ICC) is going to begin dispensing justice in the near future. The court, established on July 17, 1998 in Rome, was formally launched in The Hague. Human rights activists have welcomed it as a positive step to enhance respect for international humanitarian law. It is the first permanent tribunal whose main function is to handle the most heinous crimes like genocide, torture, mass murder or mass atrocities against civilians, and crimes against humanity, when no national court is able or willing to do so.

The ICC was designed to deal with crimes by individuals not disputes between states. First, it was evolved from Nuremberg and continued with the ad hoc tribunal for Rwanda. The UN had set up an ad hoc international tribunal for the former Yugoslavia, where Slobodan Milosevic is being tried but the ICC is meant to be permanent. Now 85 countries have ratified the treaty and recently China and Japan, which have not signed the treaty, have spoken in support of the court. Russia has also signed but not ratified it. This shows that the ICC has been gaining the support of the almost countries of the world.

If individuals commit any of the statute's core crimes and are not prosecuted by their own states, the court would have jurisdiction over them. Article 5 of the ICC statute says the jurisdiction of the court shall be limited to the most serious crimes of concern to the international community as a whole: 1) the crime of genocide 2) crimes against humanity 3) war crimes 4) the crime of aggression.

If a state is not party to the ICC, its citizens could prosecuted if they commit any of the listed crimes on the territory of the signatory states. Some argue that this provisions is against the Vienna convention on the law of treaties which holds that states which do not accept a treaty are not bound by its provisions. Supporters claim that failure to prosecute, regardless of acceptance, would end up legitimizing the law of the jungle. In this sense, the ICC represents a genuine step forward. The ICC's statute has no retrospective effects.

US Opposition

The court had faced big troubles from the outset. Big and powerful countries like the US, China, Libya, Qatar, Yemen and Iraq voted against the formation of the court. The US not only has refused to ratify the treaty establishing the courts, it has gone into virulent opposition. Congress has denied funding for any cooperation with the ICC. America has campaigned against the court for the fear that it will be used to mount politically motivated prosecutions of American government officials. But the supporters of the ICC insist that there are enough checks and balances in the 1998 treaty setting up the court to ensure that it operates responsibility.

The US claims immunity from the ICC's jurisdiction which is involved in UN peace-keeping missions. The US also has claimed that the court's writ runs only in nations that have ratified the treaty. The Clinton administration had played a central role in the shaping the court's treaty. Just before leaving the White House, President Clinton had signed the treaty to keep America involved.

But last year, President George W. Bush revoked America's signature, then vigorously sought to win absolute legal immunity for the Americans from the ICC jurisdiction. Last year, Bush signed a new piece of extra territorial legislation which permits the US "to use all means necessary and appropriate to bring about the release" of US citizens being tried in the court. British Foreign Secretary Jack Straw had warned Colin Powell attacking the ICC would provoke a head-on clash. All EU countries have played a significant role to establish this court. They have pressured America to ratify the treaty and make significant efforts toward protection of human rights. But US insisted that it did not want a court that could prosecute its military personnel. It has been realized, however, that the ICC cannot succeed without the involvement of world's sole super power.

Weakness of ICC

The statute has not prohibited the use of nuclear, biological and chemical weapons that are genocidal nature. Mexico and Arab states strongly protested when these weapons are deleted from the draft of statute. And other grievous shortcoming is the failure to write into the statute a legal defining of aggression. The UN General Assembly Resolution on the definition of aggression, G.A. Resolution 3314 (1974) defines as "all the use of armed force by a state against the sovereignty, territorial integrity or political independence of another states, or in any other manner is consistent with the charter of the UNO." The big powers content that only the Security Council has the right to determine whether an act of aggression has taken place, relying on a narrow reading of Article 39 of the UN Charter. But if such stand were accepted, this would once again raise the possibility of double standards.

The Red Cross and various INGOs have criticized the Rome statute for making it difficult to prosecute crimes committed in domestic civil wars. It can invite external intervention in the internal conflicts. If the ICC had inherent jurisdiction over crimes committed on a territory of a non-state party, it would be an infringement of national sovereignty, which the community of states today is not yet prepared to accept. This may be unpalatable but under the present circumstances of a discriminatory world order, it is a necessary evil. Although these weakness deprive the ICC of a certain degree of legitimacy, they don't entirely rob the court of its usefulness.

A decade of experience at the Yugoslav and Rwanda tribunals has taught the lessons of lengthy and costly trial proceedings, which has been broadly criticized. The ICC's proceedings are expected to be more efficient and in conformity of the due process of law. It is also hoped that the ICC will focus on the leaders guilty of the world's worst atrocities, rather than on the small fry.

Nepal and ICC

Nepal has ratified all kinds of treaties related to human rights and has committed to protection and enhanced to the international humanitarian law. With such respect and commitment of Nepal in the field of human rights, why hesitation of sign and ratify the Rome Treaty? By being a party to the Rome Treaty, Nepal does not lose its sovereignty nor does the treaty usurp local jurisdiction of its courts. The jurisdiction of the ICC is only complementary and local courts can function independently.

From the last few years, Nepal was facing crimes against humanity committed by revolutionary forces or the government side. In the name of "people war", a lot of innocent civilians are killed brutally. It is a big challenge for humanity and for the respect of human right. Such kinds of crimes who ever done should be punished. If national court is unable and unwilling to punish such criminals, the ICC will take jurisdiction over them to punish and no one can get impunity wherever of the world.

Certainly, this is the big positive step in the protection of human rights. That is why Nepal gains more by joining the international community to end impunity for the perpetrators of most serious crimes of concern to the international community.

(The author is a practicing lawyer at the Supreme Court)