The ICC is not intended to replace national courts. The domestic
judicial system remains, as ever, the first line of accountability.
The ICC will only take cases where a country's own courts have failed
to investigate or prosecute very serious crimes. The whole point of
the ICC is to make sure dreadful criminals are punished if national
courts are not doing their job. Indeed, the threat of an ICC
proceeding may help encourage national prosecutions in states that
would otherwise avoid bringing war criminals to trial.
The ICC could step in when the nation-state has failed to bring
serious criminals to justice -- when the country is engulfed in
anarchy or serious turmoil, for example, or when the government that has
committed gross abuses of human rights is still in power.
The ICC will not be a place for punishing forces who commit minor offenses
during a peace-keeping operation. The ICC is set up to address genocide, war
crimes, and crimes against humanity. The levels of atrocity envisioned in the
definitions of these crimes makes it highly unlikely that these definitions
would apply to offenses which may occur during a peace-keeping operation. For
example, the definition of genocide requires that the defendant act "with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group."
Even when barbaric acts are committed, a functioning national court system
would have the first right to step in, given the principle of complementarity.
Many countries have courts martial that are equipped to adjudicate such rare
cases. An individual would only be brought before the ICC when national courts
have failed to prosecute.
The experience of the former Yugoslavia directly refutes the argument that
peace may require the delay of justice. The Security Council established the
International Criminal Tribunal for the Former Yugoslavia while the conflict in
Bosnia was still going on. Indeed, the prosecution of Bosnian war-crimes
suspects played a constructive role in the Dayton peace process. The indictment
of Radovan Karadzic and Ratko Mladic, the former Bosnian Serb political and
military leaders, has helped to sideline two of the most violent opponents of
ethnic co-existence, which lies at the heart of the Dayton peace plan. They
were prevented from blocking the Dayton agreement and, subsequently, they have
been unable to function openly in many parts of the country.
A proposal from Singapore would permit the Security Council to
postpone ICC proceedings that might interfere with the Security
Council's initiatives in peace and security. The Singapore proposal
would make it harder for any one permanent Security Council member to
manipulate the ICC, while permitting the Security Council to resolve genuine
conflicts between peace and prosecution.
As in national systems, a prosecutor must be able to act
independently. If only the Security Council and the states can bring
cases before the ICC, the Court's docket will reflect the political
biases of the world's strongest states. Moreover, it is unlikely that
states will file complaints against either their own nationals or the
nationals of other states, for political and diplomatic reasons.
After Saddam Hussein committed genocide against the Kurds in northern Iraq in
1988, Human Rights Watch tried to persuade various governments to bring a case
against Iraq at the International Court of Justice in The Hague. That tribunal,
commonly called the World Court, only hears claims of one state against
another. Even in the case of a pariah like Saddam Hussein, when civil rather
than criminal proceedings were at issue, our efforts foundered because because
no state was willing to challenge another state so openly.
The statute will contain several safeguards to prevent frivolous or
politically-motivated cases at the ICC. Inidictment will require
confirmation by a Pre-Trial Chamber which will examine the evidence supporting
the indictment. The accused would have an opportunity to challenge the
indictment during confirmation hearings before the Pre-Trial Chamber. States
which are already investigating or prosecuting a case would be able to
challenge the admissibility of the case at any stage of the proccedings.
Prosecutors and judges will all undergo rigorous scrutiny before they are
appointed to the court. The current draft treaty establishes a strict criterion
for the selection of prosecutors, requiring experts
whose reputuation, moral character and independence must be beyond reproach.
They will be prohibited from any activity during their term in office that
might jeopardize their independence, and can be excused from particular cases
if there is any question of partiality. Ultimately, in the unlikely event that
they abuse their powers they can be impeached.
Genocide, war crimes, and crimes against humanity are well defined in
international treaties like the Genocide Convention and the Geneva Conventions,
and in customary international law. The statute of the ICC not only identifies
the particular acts which constitute these crimes, but it also estalishes
certain threshhold criteria that the
act must meet. To qualify as genocide, an act must be "committed with the
intent to destroy, in whole or in part, a national, ethnical,
racial or religious group." A war crime must, as the term indicates,
be committed in the context of a war. For an act to be a crime
against humanity, it must be committed as part of a widespread or
systematic attack against a civilian population.
Justice must be administered universally, not selectively. While the Security
Council has created ad-hoc tribunals for the former
Yugoslavia and Rwanda, they have, at the same time, ignored equally
grave and systematic atrocities in other parts of the world. The
international response to the Cambodian genocide of 1975 - 1979
illustrates the arbitrariness of Security Council justice. For
decades, the United States supported the Khmer Rouge as part of the
coalition which held Cambodia's seat in the United Nations. More than 20 years
after the Khmer Rouge lost its grip over Cambodian politics, the U.S.
government is calling for a tribunal to punish its leaders. Justice must not
be held hostage to political whim.