23 April 1998

Imperial Impunity: US Hampers World Criminal Court Plan

23 April 1998
The Times of India

Imperial Impunity
US Hampers World Criminal Court Plan


UNKNOWN to most people, the UN is on the verge of
establishing what could be one of the most significant
international legal bodies since the world organisation
itself: A permanent international criminal court to try
individuals for war crimes,crimes against humanity and

A draft statute has been meandering its way through a
preparatory committee of the General Assembly for the past
five years. When the PrepCom dispersed on April 3, the draft
statute was still awash with disputed text. In June the
action will shift to Rome, where a conference of UN member
states will thrash it out for a month before either adopting
a consensus statute or abandoning the project altogether.

Serious Misgivings

While an international criminal court (ICC) -- a sort of
permanent Nuremberg tribunal -- could help protect the
human rights of civilians in international or even domestic
conflicts,it must be transparent, democratic and free from
the influence of the big powers. Unfortunately, the stand
of the US has given rise to serious misgivings about its
proposed structure and mandate.

By a curious coincidence, the PrepCom began its final sitting
on March 16, thirty years to the date after the My Lai massacre.
There is no record of whether a minute's silence was observed in
honour of the Vietnamese women and children killed by US
soldiers in 1968. What we do know, however, is that
Washington is desperate to ensure that if and when the ICC
comes into existence, US soldiers and citizens should never have
to appear before it to answer charges stemming from any past or
future military action.

There are several areas where the views of the US diverge from
the majority. However, three major issues are of particular
interest. How the debate settles will determine whether the ICC
will be an effective, impartial body or an effete, politicised one.
These are: the role of national judicial systems; the `trigger
mechanism' by which cases are referred to the Court; and
whether the crime of aggression should be included in the Court's

In a recent speech Mr David J Scheffer, the US
ambassador-at-large for war crimes issues said the ICC should
defer ``to capable national judicial systems''. This, he said, would
``protect against unwarranted prosecutions of our nationals ...
while ensuring the prosecution of those who should be brought
before an international tribunal.'' In other words, the US and its
allies -- which have ``capable'' legal systems -- should be trusted
to take action against their own citizens while the ICC will be for
countries ``unable or unwilling to genuinely investigate and
prosecute suspects''.

But how willing have the US and its allies been to investigate and
prosecute ``their own''? Only one soldier, Lt William Calley, was
convicted by a US court for the My Lai massacre. His life
sentence was first reduced to 20 years, then 10, and finally 35
months, served mostly under house arrest. During the 1993
US-led UN intervention in Somalia, soldiers from Canada,
Belgium and Italy tortured and killed dozens of Somalis, including
young boys and women. Despite videotaped evidence, there
have been no convictions.

As for the ``trigger mechanism'', the US is adamant that the
Security Council have the last word on which cases are referred
to the ICC. Ambassador Scheffer puts it bluntly: ``The permanent
court must not handcuff governments that take risks to promote
peace and security ... Our armed forces are deployed globally
and need to fulfil their legitimate responsibilities without
unjustified exposure to criminal proceedings''. He also expressed concern
that ``a completely independent Prosecutor would have free rein
to probe into any and all decision-making processes and military
actions anywhere, anytime, under any circumstances''.

Somalia War Crime

The US view is that if a situation is being dealt with by the
Security Council, the latter must approve referral of any related
case to the court. This is tantamount to granting the US (and all
P-5 countries) veto rights over any investigation of war crimes
committed by itself or its allies. Thus, the 1996 Israeli bombing of
a UN camp at Qana, Lebanon, in which more than 100 civilians
were killed could probably never be brought before the ICC.

More disturbing is the impunity sought to be given to US soldiers.
Whether operating under a UN mandate or not, the US military
has never been particularly squeamish about targeting civilians
despite the sanction enjoined by the Geneva Convention. In
Somalia, for example, there was at least one US operation which
fits the description of a war crime: the massacre in Hawilwdaag,
Mogadishu on October 3, 1993. Nearly 1,000 civilians were
killed when US Rangers went berserk and opened fire
indiscriminately. Shouldn't the ICC be allowed to prosecute those
involved in such crimes? Or, like the Security Council, will it
become a victim of double-standards?

Will of the Majority

On the question of aggression, it is important that the ICC be
empowered to prosecute leaders who resort to the illegal use of
force. The 1928 Kellog-Briand Pact on the renunciation of war
as an instrument of policy could not hold because there was no
enforcement mechanism. This will not be the case with the ICC.
Perhaps that is why Pentagon spokesman Kenneth Bacon
recently said: ``What we are concerned about is that the court ...
(might be given) ... very broad authority to pursue a vague
definition of aggression that could be confused with legitimate,
defensive action to protect our national security interests...''. But
the definition of aggression in treaty law is not vague. The ICJ's
Nicaragua ruling is perhaps the clearest exposition of what
constitutes illegal use of force. Unfortunately, what the US calls
``legitimate'' action often falls in the latter category.

If the ICC is to play the role that most countries today want it to,
the statute must not compromise on the question of equality of
states and the crime of aggression. The Security Council should
have no right to block or delay the referral of cases. At the same
time, the problem of `complementarity' between national judicial
systems and the ICC should be solved by striking the right
balance between sovereign prerogatives and treaty obligations.
The judges and prosecutor should be independent and serve
non-renewable terms. The court should also be independently
financed, preferably through the general budget of the UN.

A lot will depend on the stand taken by Asian, African and Latin
American states at the Rome conference, and on whether India is
able to provide enlightened leadership. The ICC will determine
the course of international law in the 21st century. It is crucial
that its statute reflect the will of the majority.

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