ICC, an alternative to prosecuting war criminals?
ICC, an alternative to prosecuting war criminals?
Imanuddin Razak The Jakarta Post The Hague
A warning to Indonesian Military (TNI) commanders and government officials tasked at conflict areas: They can no longer take arbitrary actions that may result in a massive loss of life.
Commanders and superiors -- both military and civilian -- may also be held liable for criminal offenses committed by persons under their direct command and control or effective authority and control.
The warning and legal consequence is addressed in Article 28 of the Rome Statute of the International Criminal Court (ICC).
But many, including Indonesian military officers, may be unaware of the existence of the worldwide legal institute or its jurisdiction.
The ICC, based in The Hague, the Netherlands, is not a new institute. The Statute of the International Criminal Court was adopted during a diplomatic conference in Rome on July 17, 1998, but came into force on July 1, 2002 after ratification by 66 states.
By the end of 2003, more than 135 countries, including Indonesia, had signed the Rome Statute and 92 countries, excluding Indonesia, had ratified it.
Countries that have ratified the Statute are obliged to comply with requests by the ICC to arrest and surrender those persons accused of the most serious crimes of international concern: genocide, crimes against humanity, war crimes and the crime of aggression.
States that have signed the Statute are obliged by international law not to take any steps that would undermine it.
Yet, due to its being in existence less than two years, the ICC has limited power to investigate and prosecute individuals who have committed the most serious crimes.
Article 11 of the Rome Statute stipulates that the court has jurisdiction only over crimes committed after the Statute came into force -- July 1, 2002.
Despite international pressure, TNI generals and commanders, including former TNI chief and presidential candidate Gen. (ret) Wiranto implicated in the post-1999 East Timor referendum bloodshed, therefore do not fall under the Court's jurisdiction, as the alleged crimes occurred before the Statute was enacted.
The ICC also has limited power in that the exercise of its jurisprudence must complement the legal system of sovereign states.
"Unlike the ad hoc tribunals, the ICC does not have primacy over national judicial systems. The primary responsibility to investigate and prosecute crimes remains with states," said A. Adeniran, an investigator at the ICC's Office of the Prosecutor, while addressing an Indonesian delegation to the ICC recently.
In practice, the ICC must first make a decision on the admissibility of a case; a case is declared inadmissible if it is investigated or prosecuted by a state that has jurisdiction over it.
It is also inadmissible if a state with jurisdiction has investigated the case and has decided not to prosecute.
Similarly, a case is declared inadmissible if an individual has already been tried for the same charges, or if the case is not of sufficient gravity to justify action by the ICC.
However, Article 17 of the Statute provides exceptions to the primacy of state jurisdiction. The ICC will be able to declare a case admissible when a state is unwilling or unable to carry out the investigation or prosecution genuinely.
Another great obstacle to the ICC becoming an ideal global justice system is that the UN Security Council plays a vital role in determining the court's jurisdiction.
Although the ICC's jurisdiction may become universal or close to universal by the ratification of the Rome Statute by more and more states, it will still hold a territorial criminal jurisdiction. The concept of universality is reflected only in those referrals from the Security Council that are not linked to the territoriality or to the citizenship of any state.
Yet, the "untouchable" position of the five permanent Security Council members with their so-called unlimited veto rights may hamper the investigative and prosecutorial powers of the ICC if the accused are nationals of any of the five member countries.
To add to the currently limping status of the ICC is the existence of the U.S. Article 98 agreements. These bilateral agreements, which vary from country to country, have been designed solely for the purpose of providing immunity to American individuals or groups of people from the ICC.
The U.S., which signed the Rome Treaty in 2000 under the Bill Clinton administration, then nullified its own ratification in 2002 under George W. Bush, has come under fire from human rights groups, including Amnesty International, for its fierce opposition to and its efforts to undermine the ICC.
It is therefore encouraging to hear South Korean ICC justice Song Sang-Hyun's optimistic statement during his reception of the Indonesian delegation.
"I believe that the creation of the ICC is a collective call by the international community for preventing impunity and establishing a new precedent in international justice. The ICC is part of mankind's journey, that is, our generation's opportunity to answer such a call on behalf of future generations with a combined sense of urgency and relief.
".. The justices of the ICC are acutely aware that their participation in the court's first vital cases will define a new era in the global rule of law," he said.
He was likely referring to the mass killings in the Democratic Republic of Congo and Uganda, which many consider as cases less prestigious than the Iraq War and the post-Iraq War killings. The ICC's Office of the Prosecutor plans to investigate the two this year as its first cases.
To conclude his statement, Song also urged Indonesia to ratify the Rome Statute.
"There are challenges as well. Now, 92 states have so far ratified the Rome Statute. Among the states parties that ratified the Statute to create the ICC, the Asian region is least represented ... However, the pace of ratification of the Rome Statute needs to be stepped up in a region like ours. May I close by urging you to work toward the lofty goal of universal ratification and persuade your government to be the next state party to the Rome Statute in our region."
Eyebox:
Chronology of the ICC
1945 : Establishment of Nuremberg Tribunal to try
Nazi war criminals
1946 : Establishment of Tokyo Tribunal to prosecute
Japanese war criminals
1947 : Opening of UN Convention on the Prevention and
Punishment of the Crime of Genocide
1949-1954 : Drafting of ICC Statute by the International
Law Commission (ILC)
1989 : UN asks ILC to resume work on ICC
1993 : UN Security Council establishes ad hoc International
Criminal Tribunal for the former Yugoslavia
1994 : ILC completes ICC draft statute; UN General Assembly
establishes Ad Hoc Committee on the Establishment of
an ICC
1995 : UN establishes Preparatory Committee (PrepCom) to
finalize statute 1998 April : PrepCom completes final draft of Rome Statute
July 17 : 120 countries adopt Rome Statute at Diplomatic
Conference in Rome
2002 April 11 : 60th ratification deposited
July 1 : Rome Statute enters into force
July 12 : First meeting of ICC Assembly of State Parties
2003 February : Election of ICC Justices
March 11 : Inauguration of ICC and swearing-in of justices
June 16 : Swearing-in of the Prosecutor
Sept. 12 : Assembly of State Parties elects members of the Board
of Directors of the Trust Fund 2004 Jan. 29 : ICC Prosecutor announces Uganda has made the first
referral by a State Party