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