posted March 27, 2003 10:46 AM              

The Economist
March 15th 2003

The International Criminal Court -
Soon it will be dispensing justice

The new court's work has begun - without the Americans

IT ALL sounds depressingly familiar. The United States stood toe-to-toe against other countries, led by France, in the UN's Security Council. Weeks of negotiation seemed to make matters worse. The explicit threat of a veto hung in the air. Time was running out. However, the issue in last July's high-stakes stand-off at the UN was not Iraq, but the role of the new International Criminal Court (ICC). And the conflict in the council last summer had a happier outcome than now looks likely for the current quarrel over Iraq—a compromise resolution was passed unanimously, and everyone walked away relieved.

Despite continued and fierce American opposition, the ICC was launched formally this week in The Hague, where it will be based, with a grand ceremony to mark the swearing-in of its first 18 judges. Most other staff have yet to be hired, and the court will probably not take up its first case until next year. Backed by all EU countries, and by dozens of others around the world, it has been set up to handle genocide and the worst cases of war crimes or mass atrocities against civilians when no national court is able or willing to do so.

Unlike the UN's International Criminal Tribunal for the former Yugoslavia, where Slobodan Milosevic is being tried, the ICC is meant to be permanent. Unlike the International Court of Justice, also in The Hague, the ICC is designed to deal with crimes by individuals, not disputes between states. So, for example, whatever the outcome of the current dispute within the UN Security Council, the ICC will not be able to rule on the legality of any forthcoming invasion of Iraq.

Can the court succeed in the face of so much hostility from the world's superpower? Last July's compromise in the Security Council, giving Americans involved in UN peacekeeping missions immunity from the court's jurisdiction, expires in July. Another row is possible. A refusal to renew the resolution could well provoke the United States to repeat its threat to veto all UN peacekeeping mandates.

America has campaigned against the court for fear that it will be used to mount politically motivated prosecutions of American government officials. The court's supporters insist that there are enough checks and balances in the 1998 treaty setting up the court to ensure that it operates responsibly. Under Bill Clinton, the American government was concerned about the potential for the court to constrain America's freedom of action abroad, so his administration played a central role in shaping the court's treaty. Just before leaving the White House, Mr Clinton signed the treaty, to keep America involved. But last year George Bush revoked America's signature, then vigorously sought to win absolute legal immunity for Americans from the court's jurisdiction.

The United States has not been alone in opposing the court. The world's most brutal dictatorships, of course, have shunned it. But two democracies, India and Israel, have shared America's misgivings. China and Japan have spoken in support of the court but have not yet signed the treaty. Russia has signed but not ratified it.

Still, America's campaign against the court has had mixed results. It has not slowed the pace of new ratifications. Since last summer's Security Council quarrel, 13 more countries have ratified the treaty, bringing the total of those accepting the court's jurisdiction to 89. Many of these countries are close friends, or even clients, of the United States, such as Colombia, Bolivia and South Korea. Last month even Afghanistan ratified the treaty.

Powers of persuasion
The United States has persuaded 24 countries to agree not to surrender to the court any wanted Americans from within their borders, offering the same in return. It is pushing many other countries to sign similar deals, hoping that a web of such bilateral agreements, which it claims are sanctioned by an obscure provision of the treaty called Article 98, will in effect give Americans global immunity from the court's jurisdiction. The EU tried to ban any such deals between America and EU members, or indeed countries hoping to join the EU. But under strong American pressure, this common front collapsed.

Yet even America's campaign against Article 98 has not gone smoothly. Many of the countries that have signed such agreements so far have not, in fact, joined the court and so would not be required to surrender suspects to it in any case. No EU country has yet signed such an agreement. The one would-be member to do so, Romania, has not yet submitted the agreement to its parliament to be put into effect.

The next big step is for the countries setting up the court to choose a prosecutor, probably their most delicate appointment The court's cases will, almost by definition, be complicated and politically sensitive. Once the court's remaining key people are appointed and teams of investigators, administrators and lawyers hired, every decision to prosecute (or not to prosecute) is likely to be contentious. Some 200 suggestions for prosecutions have already been sent to the court. Early candidates are thought to be rebel commanders in Congo and Côte d'Ivoire. The International Bar Association, an umbrella organisation of lawyers' groups, has called for the prosecution of Robert Mugabe, Zimbabwe's president.

The small team of bureaucrats who have already spent months preparing for the court's launch want to apply lessons learned from a decade of experience at the Yugoslav and Rwandan tribunals, which have been criticised for their trials' length and cost. The ICC's proceedings, they hope, will be more efficient and will focus on the leaders guilty of the world's worst atrocities rather than on the small fry.

These are grand ambitions. But the court itself can do little to fulfil them without the active support of national governments, which will have to provide it with evidence, enforce its rulings and, most critically of all, deliver suspects to its courtroom. Dozens of countries have said they are willing to do these things, but that pledge was easy to make when the court was just an idea—and when no senior political or military leader was in its sights. But the day is fast approaching when the court's backers will have to prove that their support is real—not just a pious pledge.