Some Common Misperceptions About the ICC by Human Rights Watch

Won't the International Criminal Court undermine national sovereignty?

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.

Won't peacekeepers be subject to prosecution for difficult missions they undertake in hostile countries?

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.

Won't prosecutions by the ICC interfere with the Security Council's responsibilities in maintaining international peace and security?

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.

Does the prosecutor really need to initiate investigations on his own? Isn't it enough that the Security Council and the states can refer cases to the prosecutor?

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.

Won't the ICC become a forum for politically-motivated cases?

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.

Won't the broad definitions of the crimes invite frivolous prosecutions of isolated or minor crimes?

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.

Why isn't it enough for the Security Council to administer a permanent ad-hoc tribunal or create individual ad-hoc tribunals when the need arises?

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.


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