The international conference in Rome, Italy discussing the formation of a global permanent criminal court under the aegis of the United Nations has finally agreed to create it in the face of intense US opposition. It took five weeks of ferocious negotiations between representatives of the 160 states to adopt on July 16, the deadline for a decision by the conference, a treaty giving the court jurisdiction to try crimes of genocide and aggression, war crimes and crimes against humanity.
But if there is any reason for celebrating the event, it is that Uncle Sam has been left with egg on his face, his confident and arrogant expectation that other states would not dare to defy the will of the sole Super power for once shown to have no foundation. The final vote, unnecessarily forced by the US, was 190 to 7 in favour -a dear and unprecedented humiliation for American diplomacy.
One newspaper report on the final vote described the US representative, David Scheffer as sitting in numbed silence, a sitting in disbelief that the demands of the world’s mightiest nation could be so crushingly rejected! It, of course, served him right as he had engaged in such crude tactics to secure compliance that Emma Bonino, the EU humanitarian commissioner, was moved to denounce ‘activity of pure obstruction which I am informed is happening in many rooms.’
But the celebration should end there and then. It is true that the US failed to water down the text of the treaty by introducing a clause allowing states to opt out of the war crimes jurisdiction of the new International Criminal Court (ICC) for up to 10 years or more; but the court will take several years to come into being, remaining a target for ambush by Uncle Sam, and claims made for its clout to bring war criminals to justice exaggerated. The treaty requirement that the ICC first be ratified by 60 states means it will not be informed for at least five years. And although the treaty is not really injurious to US interests as Washington claims (it does not want its peacekeeping troops to run the risk of forcing ‘rogue charges’) successive US administration will try to sabotage it -if only to show that it cannot be so massively humiliated and its will so successfully resisted. David Scheffer, the US representative at the conference said Washington would ‘actively oppose’ the tribunal.
Many States that did not want to be seen to give in to US pressure at the conference, could agree, as a result of intense lobbying discreetly applied, to drag their feet when it came to ratifying the treaty - surrender not as visible as voting against the treaty during the conference at Washington’s behest.
Moreover, States, such as India, which had openly campaigned against the formation of the ICC but could not bring themselves to vote against it, are not likely to show undue enthusiasm for ratifying it. Russia, which has Chechenya’s blood on its hands, also initially opposed the treaty but voted for it in the end.
Incidentally, China which like India has a large population it routinely oppresses, openly voted with the US. Israel also voted against the treaty because it objected to a clause on the forcible movement of populations. Muslim countries voting with America included Libya and Iraq, both victims of aggression and of war crimes by the US.
Another serious reservation about the effectiveness of the ICC centres on a compromise on the issue of jurisdiction adopted by the conference following its rejection of a Japanese proposal designed to accommodate US objections. The compromise, put forward by Britain to secure French support for the treaty, highly restricts the courts effectiveness. Under it, prosecutions not referred by the UN security council will require approval from either the state of the accused or country in which the alleged crime was committed. This means, for instance, that if the UN security council blocks as it would, the prosecution of the Serbian and Russian presidents for the war crimes in Bosnia and Chechenya, the ICC will not be competent to try them, unless Serbia and Russia agree. Clearly only war criminals refereed to the court by the security council have anything to fear unless their countries resolve to see them indicted.
The compromise justifiable moved some representatives at the conference and human rights organisations to castigate it as a ‘sell out’. The secretary-general of amnesty International, Pierre Sani, commented contemptuously: ‘This court requires the permission of criminals to force trial’.
Clearly, former president Ronald Reagan cannot be indicted for bombing Libyan cities and murdering innocent civilians; US, British and French leaders cannot be prosecuted for their war crimes in Southern Iraq. The security council will not refer then to the court, and their countries would not agree to their prosecution.
British foreign secretary Robin Cook, in an attempt to defend the compromise which sabotaged the ICC, indirectly admitted that the court was only a threat to suspected war criminals of the weaker countries. He said in a newspaper interview on July 19: ‘I am delighted that the court will have an independent prosecutor, and I don’t think that the charges that have been made strike at the heart of the court. It will be a strong court with a wide remit that will send a signal to the Saddam Husseins and Pol Pots that they will be held to account and brought to justice (emphasis added). The US must surely see that the ICC can be yet another arrow to its considerable bow. It may not be before long when another amendment will be introduced to massage Uncle Sam’s injured pride and he will ride gallantly to the ICC’s rescue.
Muslimedia: August 1-15, 1998