A Tribunal with Influence

By Erna Paris, Globe and Mail, May 31, 2010

The International Criminal Court may be young, but its impact is growing exponentially.

Standing before 1,000 cadets at the United States Military Academy at West Point earlier this month, President Barack Obama formally renounced his predecessor’s national security strategies, especially those that featured unilateral American power and the right to wage pre-emptive war against supposed enemies. Unlike George W. Bush, whose foreign policies raised hackles around the world, Mr. Obama declared that America would work to develop stronger international standards and institutions. “The international order we seek is one that can resolve the challenges of our times,” he told his fresh-faced audience.

The President’s words were general, lofty and inspiring for good reason. Many of these young cadets would soon be in Afghanistan serving in harm’s way. But a quite different group watching this event from afar may have felt especially encouraged by Mr. Obama’s emphasis on universality and international institutions. I am speaking of the thousand and more diplomats and members of civil society NGOs who were preparing to attend an international conference in Kampala that begins today. They are meeting to review the strengths and weaknesses of the Rome Statute, the legal treaty that underpins and directs the workings of the International Criminal Court, now that the tribunal has been fully operational for several years.

The ICC is the world’s first permanent international criminal court. It is a transnational institution with a mandate to prosecute the perpetrators of crimes against humanity and war crimes whenever the suspect’s country of origin either refuses to do so, or lacks the necessary structural capacity. This mandate was agreed to in 1998 by 111 states, including almost all the world’s democracies; and with three ongoing trials and arrest warrants for individuals from the Congo, Sudan, the Central African Republic and Uganda, the court has been making its mark — although not without controversy. The ICC is a judicial institution operating in a political environment, a difficult nexus that demands diplomatic as well as lawyerly skills. During the Bush era, the United States was an implacable foe of the new court, but that has changed. Although the U.S. is still not a “states party” to the tribunal, it has sent observers to Kampala with instructions to participate.

The plan is to take stock. How well is the ICC dealing with countries that have shown a willingness to try their own major perpetrators of atrocities? Many proclaim that they want to, but are their domestic courts capable of mounting anything resembling a fair trial?

Take Sudan, for example. President Omar al-Bashir is under ICC indictment for crimes against humanity in Darfur — and he has not been arrested, although he travels frequently outside his country and ICC member states are legally bound to turn him over. Is Sudan likely to hold a fair trial of its President? Hardly. But a formal ICC indictment cannot easily be ignored. Yes, countries are encouraged to prosecute their own cases. And yes, the International Criminal Court is supposed to be a tribunal of last resort. But there are politics to contend with.

Furthermore, there is no international police force to carry out the ICC’s arrest warrants, meaning the court is dependent on its member states. One task of the Kampala conference will be to bolster the help the court receives from its members. Fingers are crossed: Support from the United States will be critical should America decide to weigh in.

The conference will also evaluate the effect the ICC is having on the victims of the massive crimes it is mandated to prosecute, for it is their justice that is at stake. The delegates will also need to grapple with the problem of combining peace agreements with justice when a conflict ends. Most organs of the United Nations and a majority of states understand the importance of accountability — that a peace treaty that excludes justice for the victims of war is unlikely to endure. The question is timing: Should trials of major perpetrators take place only after the dust of conflict has settled and peace has taken root? Can the dust settle without justice? These are hard questions.

The most difficult issue facing the ICC review conference will be the attempt to define the crime of aggression. In the political arena, condemnation generally falls to the Security Council, which may, or may not, take up the challenge, depending on, well, politics. The criminalization of aggression goes a step further, and the possibility of deterring violence in this way has excited humanists and other thinkers for centuries. Aggression is already a core crime in the Rome Statute, but without a legal definition, the ICC cannot exercise its authority.

Military aggression is, and always has been, associated with power. “The strong do what they will,” noted the early Greek historian Thucydides. It is not impossible that the delegates to Kampala will agree on a definition, but I think it’s unlikely. Aggression is the Achilles heel of international criminal law. Should the delegates fail to agree on a definition, they may be perceived as weak. Should they succeed, powerful nations, especially the all-important United States, may call foul and discredit the institution.

Although the ICC is still a toddler in institutional terms, its impact has grown exponentially over its first years. One need only observe the fevered response of certain governments whose members may have been accused of war crimes. The attack by the Israeli government on the person and reputation of Justice Richard Goldstone, the author of a United Nations report that accused both Israelis and Hamas of committing major crimes during the 2008-9 war in Gaza, seems unprecedented in modern democracies. In Spain, Justice Baltasar Garzon, the man who initiated the new era of international criminal investigations in 1998 by issuing an arrest warrant for Chilean dictator Augusto Pinochet, was dismissed from judicial office after he dared open a file on the Franco years, when still-unaddressed major crimes were committed. Just days ago, a top Sri Lankan diplomat dismissed charges of war crimes committed against the Tamil Tigers by arguing limply that what happened in her country is nobody’s business. “We say there were no war crimes,” she pronounced.

What all of this means is that although the regulations of the International Criminal Court may need tweaking, the tribunal is having an effect. A decade ago, no one in Israel, Spain or Sri Lanka would have felt the need to deny, or defend, their practices. Now they do. And that’s good news for the still-young 21st century.

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