International justice for all
by Kim Gordon-Bates
The inaugural session of the International
Criminal Court took place in The Hague on 10 March 2003. Established
by international treaty, this permanent institution will complement
national jurisdictions that are unable or unwilling to bring
to justice the perpetrators of genocide, war crimes and crimes
It is strange to be seeking the answer to one of the world's
most delicate problems in an area of town full of office furniture
stores and parking garages. But, by 2007, the International
Criminal Court (ICC) will have found a more dignified permanent
location in a residential part of the Dutch capital, The Hague.
For the time being, though, it lacks a courtroom an
interim one will be built where the car park is now. The architecturally
non-descript building at 174 Manweg is temporarily home to
an awesome legacy of legal history, from Nuremberg, Tokyo,
Arusha and The Hague (Mark I). Within these walls, the frustrating
struggle to deny war criminals any escape from impunity has
found its first incarnation.
On 10 March 2003, just down the road in a rather more regal
setting, the first 18 ICC judges, chosen by the Assembly of
States Parties to the Rome Statute, the treaty that gives
the ICC its authority, were sworn in the presence of Queen
Beatrix of the Netherlands before a gathering of world dignitaries.
The ICRC was represented by its president, Jakob Kellenberger.
The event, taking place in the run-up to another international
war and in the aftermath of a number of recent bloody conflicts,
was widely celebrated by the international community, the
media and human rights organizations. Those nations who were
not listed, either among the 89 who have ratified the Rome
Statute or the 139 that have initially signed it, must have
felt the chill air of isolation.
Despite the high-profile inauguration festivities, the court
is keen to downplay expectations. According to Morten Bergsmo,
a Norwegian senior legal advisor to the Prosecutor's Office,
the inauguration of the ICC "is not a dramatic leap forward,
it is more a continuation of the momentum for international
criminal justice that was set in motion in the early 1990s".
The circumspection is justified in that the ICC is, by its
own admission, a safety net that will act only on cases when
concerned countries neither can nor wish to deal with relevant
complaints in the framework of their own existing legal structures.
Of late though, a number of developments in Cambodia,
East Timor and Sierra Leone, for instance have shown
that even states profoundly affected by a terrible conflict
can find the will and means locally to bring those accused
of war crimes to justice. ICRC legal experts actively support
these national undertakings in nation states by assisting
authorities in the drafting of national legislation to outlaw
war crimes under the principle of universal jurisdiction.
Sarajevo, 1993. Intentionally dircting attacks
against civilian objects is an imprescriptible crime of war.
Claimants and perpetrators
But hopes in national legal endeavours can be misplaced
and the ICC is there to pick up where local efforts fail.
Officially active since July 2002 after 60 countries ratified
the Rome Statute, ICC staffers have been thrown into the deep
end of things. Within a period of months some 200 'communications',
as complaints are called, have been received. While no indication
is given on the nature of the complaints, it is said that
they mainly come from Africa, Latin America and Asia. The
immense appeal of the ICC is at least in part owing to the
fact that anybody with a serious grievance, be they an individual,
an association, or a state representing the interests of aggrieved
persons, can seek to initiate a legal process against the
alleged perpetrator of a crime against humanity, a war crime
or an act of genocide.
The process starts when the office of the ICC's prosecutor
subjects a complaint to strenuous legal and factual analyses
and decides to submit to a pre-trial chamber. The ICC will
not be able to adjudicate on all the grievances it receives,
says Bergsmo, but "we will want to get those who are
more responsible", in other words, the ICC believes it
is better to go after one general than ten captains.
The court can call upon states party to the treaty to assist
in the gathering of information for a case. It also can conduct
investigations of its own within certain limitations. But
a lack of compliance by an uncooperative or hostile state
will not prevent a trial from happening. "Witnesses are
most important," says Bergsmo, adding that, "access
to areas will be significant but it is not decisive."
In other words, ICC hearings allow victims to express their
pain and anger. Also, the court will not grant immunity from
prosecution to an accused who agrees to cooperate, yet such
cooperation will be taken into account when sentencing takes
According to the Rome Statute, a person found guilty by the
court risks a maximum "term of life imprisonment when
justified by the extreme gravity of the crime and the individual
circumstances of the convicted person" (article 77);
more commonly though, terms of prison will not exceed 30 years.
Equally important, the court has the power and the responsibility
to decide whether a victim is entitled to reparation, and
if so, on the scope and extent of the reparation owed.
A formidable job ahead
Philippe Kirsch (Canada) has recently been elected president
of the ICC panel of judges. He is a member of the ICRC international
advisers group until August 2003. Ambassador Kirsch contributed
the foreword of Elements of War Crimes under the Rome Statute
of the international Criminal Court published by ICRC/Cambridge
University Press in 2002.
Could you briefly illustrate the link between the Rome
Statute, the ICC and international humanitarian law (IHL)?
What the Rome Statute does in addition to the existing body
of IHL is to create a permanent institution for the effective
implementation of that law when states fail to do so. This
creates the missing link between IHL and individual criminal
responsibility to ensure both effective respect for IHL and
an effective remedy to impunity for its violations.
What do you think would be the most noticeable impact
of the ICC in the months or years to come?
It is only from the perspective of a future historian that
the ICC's impact may properly be assessed. It is my hope that
that impact will be seen to have asserted the principles of
international justice and in so doing, averted violations
of that justice which would otherwise have been committed.
An ominous warning
Expectations are high that over time the ICC will be an ominous
warning to all would-be criminals and serve as a convincing
deterrent. In Bergsmo's words, "The ICC will add sharp
teeth to international law", and contribute to further
Although the ICC bases itself on a wide spectrum of applicable
law there is, for instance, no general requirement
that a context of armed conflict should prevail for a crime
against humanity or even an act of genocide to be considered
by the court's prosecutor it is a vital road sign on
the rocky path to satisfactory enforcement of international
law. According to Louise Doswald-Beck, secretary general of
the Geneva-based International Commission of Jurists, "It
is a massive understatement to say that the Geneva Conventions
and their Additional Protocols influenced the Rome Statute:
it is almost entirely based on them."
The ICRC participated actively in the diplomatic negotiations
leading up to adoption of the ICC statute and welcomed its
entry into force last year. Its advisory service is also engaged
in assisting states to incorporate their ICC obligations into
domestic law. In recognition of the ICRC's unique humanitarian
mandate in situations of armed conflict, in particular the
need to preserve access to victims at all times, the ICC's
Rules of Procedure and Evidence provide that ICRC staff cannot
be compelled to testify before the court.
And yet despite everything, despite all obstacle and misgivings
of both the legitimate and less legitimate kind
the ICC must work and be seen to be working.
Kim Gordon-Bates is ICRC senior editor.
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