Towards an effective International Criminal Court: Meeting the Challenge
From June 15 to July 17, 1998, governments will meet in Rome to conclude negotiations on a treaty creating a permanent International Criminal Court (ICC).
From June 15 to July 17, 1998, governments will meet in Rome to conclude negotiations on a treaty creating a permanent International Criminal Court (ICC).
The ICHRDD views the creation of an independent and effective Court as an unprecedented opportunity to combat impunity for genocide, crimes against humanity and war crimes. For too long, the world's human rights violators have freely murdered, raped and maimed, while much of the international community looked the other way. To end such outrages, the world needs a permanent international Court able to try the perpetrators of the most heinous crimes, where domestic courts are either unwilling or unable to do so.
The present draft of the ICC Statute contains 116 articles, as well as 1,300 brackets indicating disagreement over what to put in the text. ICHRDD believes that it is crucial that States make principled choices which will guarantee the integrity and the credibility of the Court in the eyes of States and citizens across the world. It is crucial that States resist the pressure and temptation to negotiate the Statute down to the lowest common denominator.
There are seven key issues - in essence, the cornerstones of the Statute - without which the Court will become a hollow remedy and perhaps even a step backward for the rule of law and international justice. They are:
| 1. Garanteeing Effective Jurisdiction |
The Court must have jurisdiction to automatically investigate and prosecute the internationally-recognized crimes of genocide, crimes against humanity and war crimes occurring in both international and internal armed conflict. ICHRDD strongly believes that crimes committed in internal armed conflict, which comprise most of the wars fought today, should be treated no differently than crimes committed in international armed conflict.
| 2. Ensuring Cooperation with, not Subordination to, the Security Council |
Some countries propose granting the Security Council sweeping powers to determine the docket of the ICC. The granting of such power to an essentially political body is incompatible with the establishment of a judicial system. The Court requires total independence in order to guarantee that the highest standards of international justice are respected.
| 3. Ensuring the Independence of the Prosecutor |
One of the current proposals allows the Prosecutor to freely initiate investigations and prosecutions, subject only to appropriate judicial scrutiny. This option, which is referred to as "ex officio" power, is crucial because it allows the Prosecutor to act on substantiated information from any source, including nongovernmental organizations (NGOs), the UN, States and individuals, and therefore depoliticizes justice.
| 4. Ensuring Effective Protection of Gender Crimes and Protection of Victims and Witnesses |
Because sexual violence is widespread in all wars, these types of crimes should form a large part of the work of the ICC. For this reason, it is imperative that the Court be capable of effectively prosecuting the perpetrators of these crimes. This requires a staff that is gender-balanced and that has expertise on sexual violence. In addition, an adequate and gender-sensitive victim and witness protection system must be established to ensure that people come forward to testify without fear of reprisal and that they are protected before, during and after the prosecution of a case.
| 5. Ensuring the Right to a Fair Trial for the Accused |
Justice is a balance between an accused's right to a fair and public trial and the protection of victims and witnesses. Therefore, the rights of the accused must be clearly set out in the ICC Statute. These protections must extend from the initial interrogation through to imprisonment, acquittal, pardon or commutation of sentence.
| 6. Ensuring the Full Cooperation of States |
In order to ensure a workable Court, the ICC must be provided with certain powers, such as the power to compel States to transfer suspects, produce information, and provide access to witnesses. If a State has refused to implement the Court's order fully and without delay, the ICC should be able to invoke appropriate sanctions.
| 7. Prohibiting Reservations |
Some international treaties expressly allow States to limit certain obligations by making a "reservation". Such reservations should not be permitted under the ICC Statute. Reservations would seriously weaken the integrity and moral validity of the Court, and would cloud the nature of the obligations contained within it.
The struggle against impunity is a global struggle for justice and peace. This struggle starts, first and foremost, at the national level, with national investigations and trials to judge criminal and civil responsibility of perpetrators of serious human rights violations. Sometimes, however, national courts are unable or unwilling to act. In these cases, the international community must be able to step in and name the violations, judge the perpetrators and punish the guilty. The International Criminal Court Statute can provide the mechanism to make this happen, as long as it is created with the seven crucial cornerstones outlined above.
For More Information
Please contact Steve Smith (ext 255) or Louis Moubarak (ext 261) at Rights & Democracy, 514-283-6073.
