The first purpose and function of the court is to prosecute war criminals, and others guilty of "enumerated" crimes. There is much disagreement, even at this late stage in the negotiations, about just which crimes should be enumerated, or whether or not to enumerate crimes. Our Global Neighborhood recommends the court prosecute violations of international law, contending that "...the very essence of global governance is the capacity of the international community to ensure compliance with the rules of society" (p. 326). While there is much left to be agreed by the delegates, the central issue appears to be decided: there will be an International Criminal Court. All that remains to be decided is the extent to which it may initially govern the globe.
Issues that remain to be resolved in Rome include: (1) relationship of the court to the UN; (2) jurisdiction; (3) structure and administration; and (4) implementation procedures.
Relationship to the UN
The creation document, in its present form, is referred to as a "statute," though some delegates prefer to create the court through a treaty. This distinction may be moot in terms of the court's function, but can be extremely important in terms of authority and accountability. It is not yet decided whether the court shall be a free-standing, independent entity related to, but not controlled by the UN General Assembly and/or the UN Security Council. Or, whether the court should be a direct adjunct to the General Assembly and/or the Security Council.
As a free-standing entity, the court would be accountable only to a "Conference of the Parties (COP)," which means simply a group of delegates appointed by the participating nations. An obvious weakness of this structure is the fact that appointed delegates tend to come and go at the whim of current national political leaders. Therefore, the Conference of the Parties is necessarily a fluid body which is dependent upon the Secretariat, or paid staff of the court, for all the information on which the COP exercises its ultimate authority. This is an inherent weakness that flaws the implementation of all treaties.
On the other hand, direct control by, and accountability to the UN General Assembly offers little improvement, since delegates to the General Assembly suffer the same shortcomings as do the delegates to a COP. Moreover, General Assembly delegates already have a plateful keeping up with the other events the staff serves. Whatever the Preparatory Committee decides, the court will be, for all practical purposes, an independent bureaucracy, free to manipulate its would-be master, and exercise its authority around the world.
Jurisdiction
Jurisdiction is an all-import issue yet to be decided. Jurisdiction of crimes, as well as jurisdiction over geography, is still up in the air. Again, whether or not there should be an international court with any jurisdiction at all, has already been decided. What remains to be decided is where to draw the initial lines of limitation. Whatever lines are drawn in Rome, they can be erased and redrawn in another city in another conference. The document provides for amendment as well as substantial latitude for "rules" to be developed in the future by the court itself.
President Bill Clinton has announced publicly that he supports the International Criminal Court as an effective means to deal with war criminals. There is speculation among Washington-watchers that efforts to prosecute the culprits in the Bosnian-Serb affair have been deliberately delayed to allow the ICC Preparatory Committee to finalize its document. Whether deliberate or not, the ideal time to generate public support for a new International Criminal Court is while the world is focusing on the awkwardness of the effort to prosecute the existing known war criminals. That prosecution is now sure to come after the ICC document is adopted in Rome.
The new court is already being presented to the world as strictly a vehicle to prosecute war criminals. Those who conceived the court, as well as many of the delegates on the Preparatory Committee, see the court as a vehicle to enforce all international law. If not initially, certainly within the foreseeable future. At the April meeting of the PrepCom in Geneva, the delegate from the former Yugoslavia argued:
"Should the ICC reach only war crimes, or should it extend to all crimes against humanity. Here lies the great potential of the ICC: international law has created a huge body of norms, but no means of enforcing them. The ICC will finally present a mechanism for enforcement of those norms. The ICC would determine what the elements of various new crimes are, and then set about enforcing these newly defined crimes."
Mr. Gianfranco Dell'Alba, European Union delegate from Italy, added:
Ms. Mona Rishmawi, International Commission of Jurists, and UN Independent Expert on Human Rights, offers this observation:
"The whole reason we need an international court is that national courts have not done enough, particularly to protect rights of the woman and girl child. The court must be able to receive complaints from a variety of sources; from individuals and from NGOs. The role of the court is not to protect the sovereignty of states, but to protect victims."
Regardless of what the promotional campaign may say about the court's authority being limited to war crimes, the intent of those who are creating the court is to enforce all international law, including social and environmental law.
Geographic jurisdiction is nearly as troublesome as is the definition of criminal jurisdiction. The discussion centers around how to enforce international law in those nations that choose not to ratify the document. And how to enforce international law when it involves a nation that has not ratified the document as well as one that has ratified. One popular solution is to make the document binding on all nations unless a nation "opts out" by following a prescribed procedure within a specified period of time. As the document now stands, subject to inevitable modification in Rome, the court will become a reality when adopted, and each nation will become subject to its provisions as each nations files a document of ratification or acceptance.
Structure
Articles 30 through 94 deal with the structure of the new court. Only a few issues are decided, but they are significant. There will be no such thing as a jury trial. All judges will be appointed by an authority yet to be decided. There will be an appeal procedure, to the same court, but different judges. Legal persons (corporations and organizations) may be prosecuted as well as natural persons.
The maximum sentence is life imprisonment for natural persons, and dissolution and confiscation of assets for legal persons. The court will provide for its own administration through its own Secretariat.
The work of the court will arise from what is called its "Procuracy" (Article 36). Simply put, this is a panel of prosecutors and investigators who have the authority to investigate "complaints" of violations of international law within the jurisdiction yet to be specified. Prosecutors are specifically authorized to investigate complaints submitted by NGOs (Article 46), and pre-indictment arrest warrants may be issued. Prosecutors and investigators may work freely inside the borders of sovereign states without interference by national governments, and national governments are compelled to cooperate with investigators when requested to do so. Article 78.6 deals with states that refuse to comply by referring the matter to the UN General assembly or the UN Security Council "so that necessary measures may be taken to enable the court to exercise its jurisdiction." Convicted criminals are to be jailed in a participating country, or in the court's host country under terms to be negotiated with the host government.
Implementation
Once the court becomes a legal entity by virtue of the adoption of the document, there is still much to be done before UN prosecutors begin snooping around the world. That work is to be done by a Preparatory Commission, created by the document. The Commission will be appointed by the UN Secretary General and shall consist of individuals from those nations that have signed the authorizing document. The Commission shall:
The Commission will be headquartered in New York and the Secretary General is directed to provide "such services as the [Commission] may require."
Conclusion
The full text (174 pages) of the document is available at http://www.sovereignty.net. This summary analysis only touches the tips of a few of the icebergs that await national sovereignty, and all hope of individual freedom for the rest of the world. Aside from giving the United Nations the power to enforce international law under pain of prison or extinction, in the case of legal persons, this court transforms the United Nations from an institution that serves its member nations to an institution that forces individuals as well as nations to comply with "international norms" as prescribed by the United Nations. It is much too late to stop the creation of this International Criminal Court. It is not too late to render it ineffective. Without the support, and funding from the United States, the court, like the League of Nations, will flounder and eventually vanish. Every American who values individual freedom, private property, free markets, and national sovereignty has a responsibility to help the court follow the League's path to oblivion.
© Copyright, 1998, Environmental Conservation Organization