Credibility for war crimes court

Adam Roberts, Oxford University, Guardian News Service, London

The International Criminal Court (ICC) will be born on Thursday, at a ceremony at UN headquarters in New York,. Enough states will ratify the Rome statute of the ICC to bring the total from its present 56 to above the critical number of 60 needed to activate the treaty.

The statute, the text of which was drawn up and first signed in 1998, will then come into force on July 1. Acts of genocide, crimes against humanity and war crimes committed from then onwards can be investigated and prosecuted by the court. By 2003, the ICC will be up and running, with headquarters in the Hague.

It has been a long time coming. In 1872 Gustave Moynier of the Red Cross in Geneva, horrified by violations of the law in the Franco-Prussian war, proposed an international criminal court; and in 1948 the UN general assembly passed a resolution envisaging an international tribunal to try cases of genocide. In the end, it was the crimes in Yugoslavia and Rwanda in the 1990s that compelled states to act: Having established ad hoc tribunals to deal with these, it was impossible to resist the case for a permanent court which could address extreme crimes wherever they occurred.

It is tempting to view the ICC's birth as a triumph of law over force. In reality, the ICC comes into the world in terrible circumstances. Many major states refuse resolutely to become parties to the statute, and the ICC prosecutor faces a nightmare task in deciding which crimes to investigate. The hard part of the struggle for a system of international trials for extreme crimes lies ahead.

It is encouraging that, with the notable exceptions of the U.S. and Turkey, most NATO states are parties. So are a few significant powers elsewhere, including Argentina, Nigeria and South Africa. But at that point the grounds for optimism start to look thin. The list of states that are not parties to the ICC statute is sobering. The militant opposition of the U.S. -- based on the fear that an ICC prosecutor might charge American servicemen with war crimes -- has been much publicized. What is less known is the determination of many other important states, including China and Russia, to avoid the hazards involved in accepting the statute.

Law without power is no law. International courts need the support of major powers if they are to operate effectively. The Yugoslav tribunal in the Hague was virtually powerless for the first two years of its existence, because it wielded no power where it mattered -- in former Yugoslavia. Only from late 1995 onwards, as the NATO-led peacekeeping force established itself in Bosnia, were there suitable conditions for the gathering of evidence and, eventually, the arrest of suspects. Only then could the court begin to function as intended.

There is wide agreement that the ICC's list of crimes (genocide, crimes against humanity and war crimes) is a sound basis for the court. These crimes are based on solid law, and also on precedent from the Nuremberg tribunal in 1945-1946, right down to the ongoing Yugoslav and Rwanda tribunals. The decision made at the Rome conference in 1998 that the ICC will not initially include in its list of crimes either aggression or terrorism looks sensible, especially as both are notoriously hard to define.

The key problem is not what types of crime the ICC will tackle, but which particular crimes, in which countries. It is expressly barred from pursuing a case which is being genuinely investigated or prosecuted within the state concerned. It was on this basis that Robin Cook, then the British foreign secretary, gave his remarkable assurance to parliament last year that no British serviceman would be hauled before the ICC.

Under the strictly specified provisions by which the prosecutor can inquire into crimes, the ICC is unlikely -- unless specifically directed by the UN security council -- to investigate crimes. It is also unlikely to investigate crimes in states that are not parties to the Rome statute. The daily outrages in Israel and the occupied territories would probably not be pursued by the ICC, because Israel is not a party, and the UN security council is unlikely to refer the matter to the ICC.

There is a serious risk that the ICC may in the end tackle a small number of cases, mainly from third world states. If so, it would add to the damaging perception of the system as dominated by the white north, imposing standards on a reluctant south. Because of this, the UN security council and the ICC will have a delicate task in deciding which cases to investigate and prosecute. The prosecutor, who is to be elected later this year, will hold the most important and politically sensitive post in the court.

It will be hard to build up confidence in the court's impartiality while being unavoidably selective in investigations; and even harder to secure the necessary minimum of co-operation from states that are not parties to the ICC.

The 18 judges may be less busy than the prosecutor. At least three will be full time from the start, but the others could initially be part time. There may be periods when they have little to do but sit in the Hague and study. This is not a criticism of the court. Its greatest success may well be in getting states to take their obligations to implement international law seriously, and to investigate violations properly within their own legal systems, so that their nationals never see the dock in the Hague. Like the nuclear deterrent, the ICC may have a function even if it is not used.