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International criminal justice"Many thought that the horrors of the Second World War - the camps, the cruelty, the exterminations, the Holocaust - could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time has shown us that man's capacity for evil knows no limits. Genocide is now a word of our time, too, a heinous reality that calls for a historic response."Kofi Annan, UN Secretary-General
The response came in 1998 with the establishment of the International Criminal Court, set up to end impunity and achieve justice for all, to help end wars and conflicts, to act where national criminal justice institutions won't and to deter the most serious crimes in the future. Yet, despite its lofty aims, the ICC has been controversial since its inception, facing downright hostility from the world's one remaining superpower, the United States. Why
the US turned its back on the ICC
In 2002, the International Criminal Court was created to judge the worst crimes on the planet. America helped create the ICC, yet the current US administration strongly opposes this court. During his last election campaign President George Bush vowed that no American would ever come before it. What has changed to pit the US government against the ICC - a court that has the support of most of America's democratic allies? America has a long history of supporting international law, but that support has always been balanced by its desire to protect its national interests. America led the way in creating international criminal tribunals from Nuremberg in 1945 to the Yugoslavia and Rwanda tribunals of the 1990s. The ICC is the direct descendent of these earlier experiments in international criminal law. The International Criminal Court took shape in the late 1990s. The man who oversaw the negotiations is Adriaan Bos. "The Americans were very positive, very constructive at the negotiations. They participated in all negotiations actively," says Mr Bos. US signatory The top US negotiator at those talks was David Scheffer, then US ambassador for war crimes issues. He negotiated hard and only at the last possible moment, on 31 December 2000 did he sign the treaty on behalf of the US government. "We said at the time that while we still had some flaws in the document that we needed to work out, we felt that by being a signatory to the treaty we'd have the negotiating ability to continue to work those issue over the next couple of years." The Bush administration abandoned the ICC negotiations in 2001. "The American attitude changed in my view when the Pentagon took a firm position that it was against it," says Adriaan Bos. "They sent out telegrams to all capitals participating in the conference that military interests were in danger." Withdrawal At that time the US was in the midst of its so-called 'war on terror". In 2002 the US unsigned the Rome Statute. The risk, as this US administration sees it, is that actions that it considers necessary to win a war, could be defined as war crimes by this court. As a safeguard, the US wanted the UN Security Council to have sole power to refer cases of states that have not signed up to this court. That way the US could use its veto to block referrals of cases it disputed. But this court has universal jurisdiction. It allows nations to prosecute crimes first, but will step in if a state cannot or will not genuinely prosecute. Court review Nick Rostow, General Counsel at the United States mission to the United Nations says this presents a real problem for his administration. "The court and the prosecutors can sit in judgment of American judicial decisions. American judges very often decline to prosecute; they often enter into plea agreements. Sometimes they decide a defendant can be acquitted and under the Rome Statute all these decisions would be re-viewable by the court and that is a fundamental problem we have under our constitution." Political bias The US government also fears that its nationals will be targeted in politicised trials. "There are those proponents of the court who would like nothing better than to have, say, Secretary of Defense Donald Rumsfeld before it." David Scheffer says that the US helped build in many of the checks and balances to prevent prosecutors from acting on any political bias. Cases must be approved by judges in a pre-trial chamber and then reviewed by the appeals chamber. "It would be extraordinary if after all of those hurdles are confronted, the U.S is still deemed as not having properly investigated a case. Remember that can mean investigating and determining that there's no merit to prosecution and the court has to recognise that kind of judgment." Article 98 Beyond opposing this court, the US is actively working against it. It has signed one hundred so-called "Article 98" agreements with other, mainly poor, countries. Under these agreements, the country in question agrees not to surrender US nationals to the court. In exchange the country can continue receiving US aid money. These agreements have angered many supporters of the court who had hoped the US would adopt a 'live and let live' approach to the ICC. Nicholas Rostow's faces this resentment often in his work. "I've had innumerable conversations with my legal colleagues in the UN system on this subject and very often the disagreement boils down to whether or not we are prepared to trust another court sitting in judgment on our legal system. Well, we're not and our colleagues say 'but they're all well-trained, respected lawyers, you have nothing to fear,' and that is not a principled objection, that is a 'trust me' objection and we're just not going to do it. It's not that we don't think war criminals or (those who commit) crimes against humanity or genocide should not be held accountable, we do." US sovereignty "There is at the heart of their philosophy - especially when it comes to tribunals and courts - the idea that the US should not sacrifice any of its sovereignty to an international court," says Mr Scheffer. "Over the last four years we have significantly diminished our leadership role in the interest of international justice and the ICC is very symbolic of that." "I get depressed at times," Mr Scheffer adds: "Because the United States could have been such a significant, helpful and constructive participant in the work of the ICC. It could have been used as an instrument to advance so many of the national security and foreign policy interests in the US and that's what so bizarre about the Bush approach. It's actually now backfiring and undercutting so many of our interests." Michele Ernsting 2005
See related articles: The Holocaust Holocaust denial Prosecuting serious crimes Our Law Some further cartoons - from the AEL David Irving |
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