International Criminal Court
Editorial
Stabroek News
June 11, 2003
A group of eighteen distinguished lawyers, one being a West Indian, seven women and eleven men, are at work in the Hague, Netherlands. They are engaged in the establishment of an institution which incontestably marks a major advance in human civilisation. The institution is the International Criminal Court (ICC).
The eighteen, all with demonstrated high expertise in international law or national criminal law have come from nearly all the major regions of the world and were elected in February as judges of the ICC by an Assembly of representatives of the States who have ratified the treaty bringing the ICC into existence. The regional breakdown of their origins is as follows: Six are from Western Europe, one from Eastern Europe, three from Africa and three from Asia, one from North America, two from Central America and the Caribbean and two from South America.
What is of particular importance for Caricom is that of the two judges from the Central American and the Caribbean region, one is from Trinidad and Tobago, namely Karl Hudson-Phillips QC. At their recent meeting in St Vincent and the Grenadines, Caricom Foreign Ministers in welcoming the appointment of Hudson-Phillips “recalled the role played by Caricom, spearheaded by Trinidad and Tobago in promoting the establishment of the ICC and reaffirmed the Region’s commitment to the preservation of the integrity and effective functioning of the Court in accordance with the Rome Statute.”
In view of Caricom’s solidarity on this matter, it is all the more surprising that while Guyana has signed the treaty it has not yet ratified it. It is ratification which makes a treaty operational. To date eighty-nine countries have ratified the treaty known as the Rome Statute establishing the ICC.
Another 50 countries including Guyana have signed but have not ratified. One consequence of Guyana’s non-ratification to date is that it could not participate in the Assembly which elected the Judges including Hudson-Phillips.
It is not difficult to argue the point that the ICC when it begins hearing cases probably early next year will mark a major advance in humanity’s long search for justice against those who commit heinous crimes. One does not need in identifying such crimes against humanity to go far back in history. The twentieth century will do. The holocaust in which seven million Jews perished is perhaps the best known of mass atrocities. Under Stalin’s rule it is recorded that in the 1930’s over seven million died, most in the Ukraine as a result of deliberate starvation. Before that between 1915 and 1918 it is estimated that one and a half million Armenians were killed and their ways of life destroyed. Nor were mass atrocities confined to Europe. In Nanking, China, the invading Japanese army killed, tortured and raped several hundred thousand persons. In Pol Pot’s genocide in Cambodia, some two million persons were killed.
Except for the Nuremberg trials of the Nazis, the perpetrators of such genocides have largely escaped punishment. In the case of the more recent genocides, the ethnic cleansing in Bosnia- Herzegovina and in Rwanda involving well over a million deaths, the international community has established special tribunals namely the Yugoslav tribunal well known because of the TV coverage of Milosevic’s trial, and the lesser known Rwanda tribunal. More recently there has been a special UN tribunal to investigate the atrocities committed in Sierra Leone. Such special or temporary tribunals have major disadvantages. First, they are perceived as the instruments for exacting the vengeance of the victors. Second, they are difficult to organise, to finance and to staff and to operate under specially formulated rules. In Cambodia, the Government’s insistence on the trial of Pol Pot’s henchmen in the local courts in association with the UN, a hybrid arrangement in which the UN appointed one or two judges, seems to have failed. It is also likely that the US decision to try such Iraqi despots as they can find in a reconstructed Iraqi judicial system will only add to the current mounting difficulties of the occupying coalition.
Unlike the transient tribunals established at Nurenberg for the Nazis and in the Hague for Milosevic and other Yugoslav war criminals and the one in Rwanda and the less well known UN Tribunal for Sierra Leone (which last week issued an arrest warrant for Charles Taylor, the President of Liberia on which the Ghana Government failed to act), the ICC will be permanent. Unlike the International Court of Justice (ICJ) which has long been established in the Hague and on which Guyana’s own distinguished Dr Mohamed Shahabud-deen has served as a Judge, the ICC now being established will not deal with disputes between states but with criminal cases against individuals. The ICC Statute, it is reported, explicitly deprives Heads of State or Government of any immunity they might currently claim under international law, as Chile’s former President Pinochet claimed when brought to trial in a British Court.
The ICC marks a major advance in civilisation as in the future the Idi Amins (still reportedly alive in Libya), Pinochets, Duvaliers and Milosevics will know that a Court exists which can routinely investigate and hear cases dealing with genocide, systematic torture and rape, war crimes including deliberate bombing to kill civilians and crimes against humanity, and can issue arrest warrants for their perpetrators and for their trial and sentencing.
It is therefore surprising that the US has not only withheld support from the ICC but has sought to undermine its establishment in a number of ways. The US position is probably the latest expression of the doctrine of US exceptionalism. That did not begin with George W. Bush but goes all the way back to the Founding Fathers who contended that their new state should avoid entanglements with older states. But the Bush White House has given it a sharper edge. In view of US hyper-power it is now argued that whatever is good for America must be good for the world. Hence anything that might thwart US national interests must be undermined or eliminated. US attitudes to the UN, the withdrawal from the Kyoto Climate Protocol and other treaties, the pressure on or removal of international public servants considered as unfriendly are all examples of the US affectation of moral and other superiority over all other states and peoples.
In respect of the ICC, the US wishes to ensure, in view of the fact that it has military and related personnel already deployed in well over a hundred countries, that US nationals are never handed over to the ICC for trial. A US Professor Michael Byers of Duke University states that Congress has already enacted legislation which authorises the US President to use military force to rescue any US soldiers detained in the Hague. In another measure which has been described as diplomatic blackmail, the US threatened to veto all UN peace keeping operations unless the UN Security Council (SC) provided immunity to citizens of non-ratifying countries. An appropriate SC resolution was duly adopted last year June on condition that it will lapse after a year unless re-adopted. It is expected that in view of present trends in the SC it will shortly be readopted.
But the US measure which threatens most directly to undermine the ICC is the bilateral treaties which the US is pressuring states into signing and under which the signing state would undertake never to hand over US military personnel and officials to the court. This is an issue of major import for Caricom states.
In their Communique issued at their recent meeting the Caricom Foreign Ministers stated: “Ministers discussed proposals from the United States for bilateral agreements designed to exempt US citizens from the jurisdiction of the ICC (so called Article 98 Agreements) and in this connection and at the request of the US Government, met with the US Assistant Secretary of State for Arms Control, Mr Stephen Radamaker for an exchange on this matter”.
That is all the Communique states. It does not say whether Caricom States will give further consideration to the matter and whether they will act jointly on the matter. It is certain that the US will not be satisfied with an exchange of views. The Caricom Foreign Ministers’ curious silence is clearly in reaction to the US hostility encountered over Caricom’s Summit statement on Iraq. However, in view of Caricom’s vanguard role in the diplomacy leading up to the ICC Statute it would be difficult for them to accede to the US request.
It is reported that to date only a handful of states have signed such bilateral agreements with the US, including East Timor and Romania.
In view of what happened last time round, when the US requested Caricom States to sign the controversial Shiprider Agreement, under which to put it in a very simplified way the US sought the right to stop, board and search ships in the territorial waters (coastal and inland) of any Caricom State, there is bound to be uneasiness. The undertaking then sought was it is understood in breach of international law. On that occasion each Caricom State negotiated alone with the US. The result was that Jamaica and Barbados secured amendments which provided reciprocal advantage while the other Caricom states signed Agreements which were held to be one-sided and to their disadvantage.
On such issues Caricom, in keeping with Treaty commitments, should adopt jointly agreed positions. This should also apply to ratification of treaties which impact on the whole region. In this context is Guyana’s non-ratification a tactic to avoid US pressure?
The strange and disturbing silence of the Commu-nique on proposed action on the US request is behaviour unworthy of the Foreign Ministers of States with some three decades or more of international experience.
