The International Criminal Court
is on the up
Associate since 1991
Comments directly to
June 9, 2010
The International Criminal Court is coming out of its first review conference with its head held high. Over a hundred nations attended its meeting, which will end on Friday, in Kampala, Uganda. No country - at least publically - wants to see the back of it, apart from Sudan, whose prime minister is under indictment.
Those African countries - DR Congo, Uganda, the Central African Republic and Kenya - which have asked for the ICC to intervene, help arrest and try alleged war criminals from their countries (in Kenya the ICC is still at the investigation stage) have set an example to show how this new world judicial system can bite with teeth. We should not be surprised. Africa has been the scene of too many of the world's recent wars and produced leaders whose cruelty has been in the same league as Hitler, Stalin and Pol Pot. Almost every God-fearing African who knows about what happened during the 1990s and the early years of this decade has been angry and appalled. However, it should be noted that today's Africa has relatively little of the old style political violence, apart from Sudan where many African nations, seemingly paradoxically, have not welcomed the ICC intervention on the spurious grounds it will make settling the murderous domestic upheavals there more difficult.
Every delegate in Kampala recognised that the ICC has to rapidly extend its activities outside Africa, otherwise there is a danger that its credibility will be undermined. Indeed, some have gone so far as to say that the U.S. should be investigated for war crimes. The US, albeit belatedly, has arrested and tried or is trying a number of those in Iraq who have tortured and maltreated captives or intentionally killed innocent women and children. It has not, however, arrested those who committed or ordered the torture of Al Qaeda suspects held in Guantanamo. After an immense amount of pressure the Justice Department is investigating if it should prosecute them.
The US is not a member of the ICC and therefore, like India, Russia and China, has not subjected itself to its jurisdiction. But a change in the American attitude is well underway. Initially, the administration of George W. Bush tried to undermine it, if not to destroy it. Later on it began to see its value. Now Secretary of State Hillary Clinton has said, "We will end hostility towards the ICC and look for opportunities to encourage effective ICC action in a way that promote US interests by bringing war criminals to justice." According to Harold Hongju Koh, the legal advisor of the State Department, speaking in Kampala, the US is going to try and find ways for its law enforcement agencies to help the ICC with its prosecutions. But Koh made it clear that the US, hypocritically, is in no hurry to ratify the ICC treaty which would make it be held to the same standard as those countries where the US seeks to see prosecutions.
The US also made it clear that it takes issue with what many countries and NGOs are lobbying to have included in the mandate of the ICC - making aggression a war crime.
At the Nuremberg tribunal where Nazi leaders were tried, the president of the court, Lord Justice Geoffrey Lawrence, told the hearing that, "Planning and preparation are essential in the making of war. In the opinion of the tribunal, aggressive war is a crime under international law."
Thus it doesn't need an amendment to the Rome treaty that created the ICC to bring in the crime of 'aggression'. Long ago it was accepted in principle if ignored in practice. When Nicaragua brought a case before the International Court for Justice (the World Court) alleging that the U.S. had mined its territorial waters in its main harbour, the U.S. withdrew its membership from the court rather than face what would probably have been a conviction.
In contrast, when President Olusegun Obasanjo of Nigeria was being pressured by his Defence Minister and a good part of public opinion to go to war with its neighbour, Cameroon, over the long disputed possession of the oil-rich Bakassi peninsular, Obasanjo reversed his country's opposition to Cameroon's decision to refer the dispute to the World Court and acquiesced when the Court awarded Bakassi to Cameroon. Aggression was recognised as a crime - and forestalled.
If the delegates in Kampala had voted for ÒaggressionÓ to be added to the list of ICC crimes it would have been not only unnecessary repetition it would have made it more unlikely that the US, India Russia and China would seek membership. Wisdom prevailed and the ICC will continue to go from strength to strength.
These four countries, surveying the growing worth of the ICC, should now put to one side their reservations and join up.
Copyright © 2010 Jonathan
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