Blocking the Road to Peace: the US and the International Criminal Court - STWR

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Blocking the Road to Peace: the US and the International Criminal Court

Simon Burall

Executive Director of the One World Trust

Blocking the Road to Peace: the US and the International Criminal Court

In series three of the better world that is the West Wing, President Bartlett orders the assassination of the representative of a foreign government who he believes is responsible for organising terrorist attacks on the US. In series four, events catch-up with him and he is in danger of being exposed. In a telling exchange with Jordan, the lawyer he is engaging to defend him, the discussion turns to the state of international law. She explains that she is finding it difficult to foresee the exact legal consequences of his illegal act. When Bartlett asks why this is, Jordan responds saying that, “most in international law doesn't exist yet.”

The series is increasingly looking like a fantasy as it diverges from the reality of the US political scene. Suddenly, on the esoteric ground of international jurisprudence, it manages to intersect with reality. At the national level, for the majority of the countries of the world, there are clear legal codes which are broadly well enforced; at the global level the legal framework is fragmentary, patchy and never enforced systematically and fairly.

Yet over the last 5 – 10 years the fragments of international law have been slowly growing and, in the arena of international human rights at least, a huge leap forwards has been made with the establishment of the International Criminal Court (ICC). This new Court, to be based in The Hague in the Netherlands, is the first permanent international institution which is able to hold individuals rather than nation states to account. No longer will it be possible for individuals to order the killing or torturing of thousands of people with impunity, the net is slowly tightening around those who abuse human rights.

The Court has just begun to operate and its prosecutor has received the first invitation to investigate crimes falling under its jurisdiction. This invitation was extended by the government of Uganda in relation to crimes against humanity committed by the Lords Resistance Army (LRA) which is making the lives of thousands of people in the north of the country intolerable. But the invitation works both ways and it is clear that the prosecutor will also have to investigate allegations of crimes committed by the Ugandan army in its attempts to defeat the LRA. In the end this will be vital in ensuring that both sides in the conflict are confident that justice has been done.

As the Court begins to investigate more crimes, it offers the real prospect that we will see a reduction in the grossest human rights abuses. It is important to note though that any meaningful effects of the court will not be seen for decades. Not only are investigations into human rights abuses slow, but the Court has jurisdiction only in those countries which have ratified the Statute, or in the unlikely case that the Security Council refers a case to it. The number of states which have ratified the statute currently stands at ninety-seven.

Notwithstanding many of the inevitable hitches that will face the Court as it starts up, it offers the first real chance for equality in the face of international justice. For too long it has been possible for an individual who orders the deaths of hundreds or thousands of people to go free while a person responsible for just one murder would receive punishment.

In the longer term the Court has the potential to reduce conflict and promote peace as those responsible for committing the worst crimes known to humanity are held to account and seen to be punished. This will remove them from the communities and countries where they have committed their crimes and may thus help to reduce the tensions which can often lead to renewed conflict and further rounds of atrocities and human rights abuses.

Yet even as it is being born, the Court is under threat. The United States, which signed the statute under President Bill Clinton, withdrew its signature in May 2002. In addition, the US has attempted to sign bilateral immunity agreements with as many countries as possible. These agreements prohibit countries from surrendering to the ICC any US national or any employee of the US government. By May 2004, 89 countries had reportedly signed an agreement with the US, including 36 ICC States Parties. Countries which do not sign this agreement are not eligible for US military aid. The effect of the agreement is to undermine the Court at its most delicate time as it appears to place one country above the law.

The US fear in relation to the ICC is that it will be subject to malicious and politically motivated investigations and prosecutions. Yet the Court has been designed to ensure that this can never happen. The Court operates on the basis of complimentarity. That is, it can only investigate and prosecute for crimes under its jurisdiction if the country from where individual is originally from is unwilling or unable to prosecute. The United States has prosecuted servicemen accused of war crimes in the past and so it is very unlikely to see any of its nationals in the dock in The Hague.

But, as the Ugandan case illustrates, one party cannot remove itself from the system of justice. If it does then justice will not be seen to be done and the cycle of violence which is a feature of so many conflicts will not be broken.

The International Criminal Court is a vital element of the global infrastructure. In the end it will help to bring lasting peace to countries and regions ravaged by conflict and in doing so will help the people from those regions to begin to build their lives and share in the prosperity that many of us in the west take for granted. A huge civil society campaign was responsible for the formation of the Court and this campaign is on-going. The campaign is pushing for further ratifications and is lobbying against the US bilateral agreements which are so destabilising the Court at the moment.

With over 19 major armed conflicts underway in 2003 which destroyed the lives of millions of people, it is important for us to add more voices to this campaign. We must pressure our governments to do all they can to support the Court and ensure that it lives up to its potential. The Court is not an obscure and irrelevant international organisation; it has the power to bring peace and therefore the prospect of prosperity to some of the poorest people of the world.