As the third assembly of ICC signatories draws to an end in the Hague, the air still resounds with the words of Kofi Annan: "In the prospect of an International Criminal Court lies the promise of universal justice". The UN’s desire to establish an international criminal justice system goes back to the days of the League of Nations and the beginnings of the international organisation. As long ago as August 12 1948, the Geneva Convention on the Prevention and Punishment of Genocide gave birth to a universal criminal justice system. However, it did not make provision for any sanction mechanisms. The Great Powers, the world’s ‘policemen’, were not inclined to rectify the situation.
After the Cold War, the powerlessness –some might say the passivity- of both the US and Europe faced with genocide in Rwanda and Yugoslavia shocked public opinion and breathed new life into the idea of a permanent criminal court. Two ad hoc international criminal tribunals were set up by the Security Council, one for the Former Yugoslavia (ITFY, located in the Hague) in 1993, and one for Rwanda (ITR, located in Arusha, Tanzania) in 1994. Although unable to prevent the crimes from occurring in the first place, the Security Council was keen to punish the guilty parties. It was seen that the definition of a set of legal norms, alongside specific procedures for enforcing these norms within an independent instiutional framework, could be used to prevent crimes from going unpunished, as well as to dissuade potential criminals.
The ICC gets under way
According to Antonio Cassese, former President of the ITFY , the tribunals served as a stepping stone towards the establishment of a permanent court which has the advantage of being stable and not focused on any one area of the globe or on any situation in particular. Through the lobbying of a coalition of NGOs, ICCNow (International Criminal Court Now), and the involvement of a group of ‘pilot’ states (comprising most of the members of the EU, Germany at the forefront, as well as Canada, Australia, Argentina and South Africa), the Statute of Rome establishing the ICC was adopted on July 18 1998, during a conference held at the United Nations.
The Court effectively came into being on April 11 2002, at which date a total of 60 states had ratified its statute. Its job is to gather together all the counts of indictment against any individual (irrespective of rank, status or nationality) suspected of genocide, of crimes against humanity, of war crimes, or of crimes of aggression for any acts committed after July 1st 2002. However, it can only act as a complement to national legal systems in cases where these are unable or unwilling to prosecute the criminals. The Court’s judges took up their duties following a swearing-in ceremony held on March 11 2003, and were followed by Argentinean Chief Prosecutor Luis Moreno-Ocampo, who took up his post on June 16 2003.
US vs. EU
The existence of the ICC is of great geopolitical significance. Apart from being a commendable undertaking by the UN, it squares with continental Europe’s ideas on the establishment of an international society regulated by the rule of law, which is the embodiment of a specific conception of justice and social organisation. Europe is trying to reproduce the model that made it strong at the international level: supranational rules sanctioned by real institutions which lead to the emergence of a new identity and a universal justice system, blind to the nationality of those who are brought before its courts. In order to achieve this, Europe recommends getting rid of any kind of discrimination on the basis of nationality. This method was adopted in the case of the European Council’s European Court of Human Rights (ECHR), which is now able to deal with cases involving the defence of the rights of the individual. The Court’s universal jurisdiction is modelled on that of the Convention for the Prevention of Torture which has been in force since 1989, and which sanctions visits to any place where it is suspected that human beings are being subjected to inhuman treatment.
The supranational dream has come up against strong opposition from the United States. Having signed the statute in 2000, they consequently withdrew their consent in May 2002, and have been involved in a fierce battle against the international criminal justice system ever since. In July 2003, the Pentagon announced that it was suspending military aid to thirty-five countries including Colombia and Slovenia. These countries were guilty of having refused to sign the bilateral agreement exempting US nationals from prosecution before the ICC. US legal tradition refuses to acknowledge any authority above the American State, an attitude which has earned the superpower its reputation for unilateralism, from Guantanamo to Iraq.
Victory for the EU-UN
The countries of Europe are not without their own reservations. France, for example, has refused to acknowledge the Court’s jurisdiction in matters relating to war crimes for a transitional period of seven years. The world’s big military powers are always solicitous of their own citizens. However, it remains that the ICC is the product of an irrevesible process; it is a functioning institution, the first step towards the creation of a universal justice system. As a European-inspired triumph for the UN, it constitutes the most admirable example of UN-EU cooperation, and a good reason not to give up hope.