Neighborhood watch goes global
No corner is hidden from the new International Criminal Court whose jurisdiction is worldwide but whose support is more patchy.
NEW YORK — It was an act that prompted cries of treason: A month ago, a left-wing Israeli group accused Israel of war crimes and threatened to forward its documentation to the new International Criminal Court (ICC). In addition to causing an uproar, the threat seemed to chasten some in the military.
At the same time, observers have suggested that Palestinian suicide bombers may be guilty of war crimes under the court's conventions, which outlaw intentional targeting of civilians.
Both developments underscore the grass-roots stirring spurred by a global governing body that convenes for the first time this week.
Just as an American "neighborhood watch" serves as the eyes and ears of the police, the ICC empowers an entire populace to be its watchdog, says John Washburn, an activist who coordinated the US grass-roots campaign to lobby for the court. While this virtual deputizing of ordinary citizens may cause some frivolous inquiries, Mr. Washburn says, the ICC's office in The Hague could become a sort of "citizens' hotline."
"Before World War II, a number of [nongovernmental organizations] had all this evidence about what was going on in Nazi Germany, but couldn't get anyone to pay attention." This occurred in Rwanda, too, Washburn says. "Now we have a well-respected international institution where organizations and individuals can go with hard evidence to get it reviewed, verified, and proclaimed to the world."
But the court has many limitations as the Israel incident illustrates. Because Israel has not ratified the court, the UN Security Council would be required to order an investigation, which Israel's US ally would likely veto. It's all part of the push and pull that the ICC which less than half the United Nations membership has signed onto has generated in its short existence.
Court advocates know the ICC will be no panacea. Still, they call it the greatest achievement for universal human rights in half a century, a tool that may revolutionize how domestic courts around the globe conduct their business.
The ICC jurisdiction and its definitions of war crimes, crimes against humanity, and genocide will compel signatory countries to adopt these statutes in their criminal codes, supporters say and to prosecute violators or face the prospect of the ICC doing it for them. That is expected to embolden judges, prosecutors, and activists, particularly in the developing world.
"For those who feel utter helplessness that nothing is done about rogues who defy the international community and act as if they are above the law, the ICC extends the frontiers of justice," said Albie Sachs, an anti-apartheid activist who now serves on the Constitutional Court of South Africa. "The ICC emphasizes the universality of human rights and the universal responsibilities of all of humanity. The excuse of sovereignty can no longer be used in the face of human tragedy."
Hailing the court as "a victory for accountability" and "the end of impunity," the governing body of the ICC is meeting in the UN and now begins a three-month process of nominating the ICC prosecutor and its 18 judges. Elections are slated for February, with the court expected to begin investigating cases next summer.
Talk of a permanent international court surfaced after World War I but was routinely delayed by geopolitics. The campaign revived in the 1990s with the slaughter of hundreds of thousands in the former Yugoslavia and Rwanda and creation of ad hoc tribunals for both conflicts.
But despite the opening of the court this week, compromises over jurisdiction have restricted the ICC's reach. The court will investigate no event that occurred before July 1 this year, which is when the Rome Statute named for the court blueprint hammered out in Rome in 1998 went into effect. The ICC also applies primarily to the countries that have ratified the court. Just 78 have done so. The bulk are democracies, with the notable exception of the US. As many as 40 more may ratify in the near future, observers say.
Ratifying countries must fully adopt the Rome Statute. When crimes occur on their territory or are committed by one of their nationals, that country must demonstrate it is "willing and able" to prosecute the suspected perpetrator. If not, the ICC as "court of last resort" may intervene.
In addition, the 15-member UN Security Council is empowered to sanction ICC prosecution of any country, regardless of whether it is a signatory.
Perhaps the most explosive issue is how to determine if a given country is truly "willing and able" to prosecute.
Rwanda is the model of a country "unable" to prosecute for itself. The genocide left some 800,000 dead, among them lawyers, prosecutors, and judges. That rendered the legal system inoperable. Thus, many Rwandans welcomed the UN tribunal.
Besides systemic collapse, a country could be considered unable to prosecute if it fails to conform to international law and adopt the Rome Statute.
The statute itself may prove controversial domestically, for example, in gender crimes. The Women's Caucus for Gender Justice successfully fought to include forced sterilization in the statute definition of "genocide," with systematic rape, sexual slavery, enforced prostitution, and forced pregnancy listed among "crimes against humanity." Generally ignored in the past, victims were reluctant to come forward and demand justice, says Rhonda Copelon, legal adviser to the Women's Caucus and a law professor at City University of New York.
More conservative, patriarchal societies resisted inclusion of these provisions in the ICC and may refuse to adopt them, she adds. "These crimes are now understood clearly and unequivocally as among the gravest of international crimes and can no longer be treated as trivial, unimportant, and presumptively the fault of women," she says. "If these international standards are not adopted, it will raise the question of whether a country is really willing or able to prosecute. The ICC says if you fail to, we have jurisdiction over your nationals."
Even though such intervention may meet resistance, some observers say the ICC allows countries to adopt higher standards without appearing to cave in to outside pressure, says Washburn. "The ICC represents the best of international jurisprudence and is the result of long, collective negotiations," he says. "Adopting it does not require any country to look as if it's bending the knee."
But sticking to the spirit of the statute may prove tricky.
Under international pressure, Indonesia created special tribunals to prosecute military officials blamed for the violence that swept East Timor in 1999 and left more than 1,000 dead. But last month, the tribunal acquitted six commanders, in what foreign observers called a "farce."
Would the ICC have deemed Indonesia unwilling, and ripe for intervention? Indonesia is, after all, the world's fourth-largest country and most populous Muslim state.
The ICC may intervene where "the authorities are implicated in the crimes themselves, or where states shield persons accused of these crimes by unjustifiably delaying proceedings, or conducting proceedings which are not independent or impartial," says Jonathan O'Donohue, a legal expert for Amnesty International.
This will undoubtedly lead into tricky terrain.
"Essentially, the [ICC] prosecutor will have to put that country on trial," says Louise Arbour of the Canadian Supreme Court, who served as chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda from 1996 to 1999. "The prosecutor will have to demonstrate that the domestic institutions are not attempting to prosecute, or are not of good faith, or are not capable of seeing it through. You can imagine the scale of this litigation."
The prosecutor must weigh the likelihood of success. "Maybe a national court is not perfect," Justice Arbour says, "but if we step in and challenge their competence, you have to think whose interests would it really serve if it takes several years to resolve?"
Much will rest on the prosecutor's discretion, observers say, though targeted suspects will likely charge political motives.
Indeed, Washington asserts that US troops will be vulnerable to ICC politicization and "kangaroo" trials. US officials continue to lobby allies to pledge never to hand Americans over to the ICC. Romania, Israel, Tajikistan, and East Timor have agreed so far. Britain and Italy, and the European Union itself, now indicate they may sign on.
For heads of state who, under the ICC, will no longer enjoy immunity the court may have unintended consequences.
Take Robert Mugabe, president of Zimbabwe's increasingly brutal regime.
"In Zimbabwe, the rule of law is breached almost daily," says a former chief justice of an African country who requested anony-mity. "Maybe Mugabe would be afraid that if he ever gave up power, [ICC] action might be taken against him in the future. Perhaps he'd become more desperate to hold onto power."
Already, The Hague has received some 50 pieces of correspondence requesting an investigation since the Rome Statute went into force, says Claudia Pergomo, public information officer for the ICC's advance team there.
The ICC may initiate only a few cases each year. As a result, nongovernmental organizations will likely push for countries to do more. "The ICC is not a ceiling on what states ought to do," Copelon says. "It's only a floor."