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At
last: American and Israeli signatures
on
the World Crimes Court
By JONATHAN
POWER
January 3, 2001
LONDON - Bill Clinton sprang a surprise, but Ehud
Barak sprang an even bigger one when, as the light was
just about to be turned off at year's end, both announced
that their governments were signing the treaty creating a
permanent International Criminal Court. It had been the
stand against the treaty by the world's superpower and
the state founded by victims of the worst crime against
humanity that had done the most to undermine the Court
before its work had begun.
That China and India and assorted other malcontents
such as Libya and Iraq had not voted for the treaty in
Rome at the founding diplomatic conference in 1998 was
less significant. 120 other nations had. But the U.S. and
the Israeli vote against seemed to many to have stripped
it, on the one hand, of a true global reach, and, on the
other, of unblemished moral purpose. This was to
exaggerate- all the other NATO countries were behind it
and the Israel of Binyamin Netanyahu was a pale shadow of
the idealism of the founding fathers. Nevertheless their
absence cut a hole.
Even though Clinton's signature comes with no promise
of ratification by Congress in the immediate future- "it
will be dead on arrival" is the promise of Senator Jesse
Helms, the influential chairman of the Senate's Foreign
Relations Committee- it will give a fillip to the pace of
ratification by the 60 countries necessary to bring the
Court to active life. And once that happens then it will
be interesting to see if the number of future Pinochets,
Saddam Husseins, Pol Pots and Milosevics starts to
decline.
The court has no retroactive powers so it is only the
world of the future that will concern it. Thus, it will
take the best part of a decade before we can get a proper
reading on its effectiveness. And even if in 2011 we find
that we live in a better world there will, no doubt, be
many other claimants for the progress made- the UN
becoming more robust? Western nations coming to their
senses and deciding to tightly control the export of
armaments and the import of illicit funds into their
banks? Or just simply the rapid extension of democracy,
already expanding with some impetus?
Yet the rapidity with which the idea of a Court has
moved forward since the end of the Cold War suggests that
there is a widespread and powerful urge not just to
establish it but to make it work. The idea for a world
criminal court first surfaced when the League of Nations
in 1937 published a draft statute for a court to try
international terrorists. This helped lay the foundations
for the Nuremberg and Tokyo war crimes tribunals that
tried the war criminals of the Second World War. And they
in turn inspired the passing of the 1948 Genocide
Convention, which made a passing reference to the need
for an "international penal tribunal". But the idea then
lay dormant for the best part of half a century. At the
end of Cold War it was President Mikhail Gorbachev of the
Soviet Union who brought the idea back to life when he
suggested the need for an international criminal court as
a measure against terrorism.
Then in 1993 the UN Security Council decided to create
the ad hoc tribunal for war crimes in ex-Yugoslavia and
the concept took wings again. The General Assembly of the
UN asked the International Law Commission to set to work
to create a statute for a full court and the draft was
delivered in 1994. The UN worked at breakneck speed to
produce an agreed treaty in only 27 months. The UN and
its member governments had Amnesty International, Human
Rights Watch and, by the end, a total of another 800
human rights orientated organizations on their back.
Never in the world's history has non-governmental
activism been so effective or fruitful.
The abiding irony of the exercise is that Bill
Clinton, who has now given the Court an almighty pack on
the back, was the same person who gave the order in the
final days of the deliberations in Rome to vote against
the court's creation. It was also the same Bill Clinton
who gave the UN the impetus two years' earlier to go full
speed ahead with the drafting of the statute. What
changed was the Pentagon's influence upon him. The Rome
conference came at the time when he was in danger of
being toppled by his sexual peccadilloes with Monica
Lewinsky. The Pentagon, neurotically fearful that the
court would be used to harass it and undermine it, seized
its moment and lobbied successfully within the
Administration for an American vote against. Indeed,
Secretary of Defence William Cohen was emboldened to
threaten Germany and South Korea, two stalwart supporters
of the treaty, with a pull out of U.S. troops.
The fight left its scars- a treaty that is not as
strong as it should have been if the majority had not
tried to placate American concerns, only to have America
vote against it anyway. Arguing as if the U.S. is above
international law the U.S. managed to insert into the
treaty wording that requires a state's consent before one
of its nationals could be prosecuted. The Court as it
stands now can only override a state by a vote of the UN
Security Council. Ironically, this is more likely to
favour Russia and China than the U.S.. It is they who
have much more to hide. The hope is a future more
cooperative relationship between the U.S., Russia and
China will avoid such stalemates. In fact, that is not
such a bad outcome and is perhaps the unavoidable way
such an important international institution has to work.
What still hangs in the air, however, is whether
president-elect George Bush will decide to live with
Clinton's decision to sign or whether he will work to
override it.
I can be reached by phone +44
7785 351172 and e-mail: JonatPower@aol.com
Copyright © 2001 By
JONATHAN POWER
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