ICC: New hope for human rights protection

ICC: New hope for human rights protection

By Pribadi Sutiono

JAKARTA (JP): Following the post-World War II trials in
Nuremberg and Tokyo, the international community is now entering
the final phases of work on the establishment of a permanent
International Criminal Court (ICC). From June 15 to July 17,
1998, representatives of various governments are gathering in
Rome for a diplomatic conference of plenipotentiaries to adopt a
treaty creating the ICC.

The diplomatic conference will be the culmination of decades
of efforts to create a permanent court. It will also be the last
phase of two-and-a-half years of debates within the preparatory
committee established by the General Assembly of the United
Nations (UN) to draft the consolidated text of an ICC statute.

Different from the International Court of Justice, which
addresses only disputes between states, and different from the ad
hoc tribunals for Rwanda and the Former Yugoslavia, which are
temporary and involve only specific countries, the ICC will be a
permanent forum to prosecute and punish individuals, not
countries or institutions, who commit excessive human rights
violations.

It is generally agreed that the ICC's jurisdiction should be
limited to investigating and bringing to justice individuals who
commit crimes considered most serious by the international
community as a whole, namely genocide, crimes against humanity
and serious war crimes.

Specifically, the draft statute defines the crime of genocide
pursuant to the Genocide Convention's terminology adopted on Dec.
9, 1948, which has been ratified by many states and is widely
accepted as reflecting customary international law. This kind of
crime may be committed in peacetime as well as in armed conflict.

Meanwhile, the definition of crimes against humanity is based
primarily on precedence from the Nuremberg trials, which includes
the widespread or systematic commission of acts such as murder,
extermination, enslavement, deportation, arbitrary detention,
torture, extrajudicial executions, forced disappearance of
persons, rape or other sexual abuse and other inhumane acts. The
definition also provides that crimes against humanity can be
committed both in time of peace and in war, by official and
nonstate actors.

The war crimes included in the ICC's jurisdiction will cover
acts committed both in international and noninternational armed
conflicts. The enumeration of such crimes committed in
international armed conflicts correspond to the grave breaches of
the 1949 Geneva Conventions and its additional Protocol I and
also crimes committed in noninternational armed conflicts
included in the same conventions and its Additional Protocol II.

Even though those crimes are included in the jurisdiction of
ICC, the court will not automatically be a remedy for all human
rights abuses, nor will it be able to address violations
committed in the past. Nevertheless, the establishment of an
effective ICC will be a significant milestone in the enforcement
of human rights worldwide.

Its jurisdiction over those core crimes may enable the court
to address the kinds of ethnic conflicts and suppression of
minorities.

The court will also have the effect of extending the rule of
law and strengthening national court systems to prosecute these
crimes by themselves.

In the future, the court would also serve as an important
deterrent to atrocities and provide a venue for redress to
victims of egregious human rights abuses.

In practice, even this is still in dispute, the ICC would be
able to request the UN Security Council to use those powers to
compel cooperation from its member states.

In addition, all countries that become a party to the court's
statute are obligated to assist and cooperate with the court. A
trial in the international court would be a fair one. The ICC
statute defines the rights of the accused in accordance with the
rights guaranteed in the International Convention on Civil and
Political Rights and the Declaration of Human Rights. They
include the presumption of innocence, the right to counsel, the
right to confront one's accusers and the right to special trial.

The Rome diplomatic conference will discuss a lengthy and
complex text reflecting divergent views on key issues relating to
the court's power, structure and functioning. There are still
disputed issues that will be discussed there. The disputed issues
include the following:

* Trigger mechanism: Based on the current draft of the ICC
statue, the prosecutor would have to wait for states to file a
complaint to the ICC, or for the Security Council to refer cases
to it. For some parties, this restrictive trigger mechanism has
got to be expanded, so that the prosecutor can initiate an
investigation based on information from any source, including
individuals and non-governmental organizations.

* Inherent jurisdiction: Except for genocide, the prosecutor's
ability to investigate the crimes against humanity and serious
war crimes will depend on whether a number of states (because a
state will have custody over an accused's nationality) have
consented to let the court proceed. This court's reliance on
state consent could effectively paralyze its operations.

Complementary principles will ensure that a case is admissible
before the court only when national courts are either unable or
unwilling to prosecute. However, the problem comes up when a
state simply declares that its own courts are effective and the
case is inadmissible, while the other parties see it as the other
way around.

In theory, the ICC could try any person in the world,
including Indonesians. Yet, it is important to remember that an
Indonesian arrested abroad for having committed a crime will
already be subject to prosecution by another country. Thus, being
tried in foreign courts is not a new development. The new
development is probably that an Indonesian can be arrested,
prosecuted or even punished for those three core crimes under
ICC's jurisdiction.

Based on this, the establishment of the court would affect any
actions conflicting the principles of humanity made by any
persons in Indonesia, including security or military personnel.

Thus, watching recent developments in Indonesia, there would
be a possibility that any persons behind the mid-May rioting,
and/or the Trisakti tragedy of student killings, might be
prosecuted under this new system.

Of course, this will mostly depend on the trial currently
being held in the national military court. If the people believe
that the decision to be made by this military court is fair
enough, they will close the case. However, if it is not the case,
there will be a possibility that they would proceed this case to
the ICC.

For this, the security or military personnel or any persons
behind those tragedies should prepare themselves to be tried
internationally. By taking this case as an example, there is hope
that they might change their habitual inhuman misconduct in the
future.

In conclusion, this coming event is very important not only
because the negotiators in Rome will establish a strong and
independent court but also because this court, by enforcing
international laws in a fair and consistent manner, will serve to
deter any crimes against humanity and war crimes in the future.
Maybe, this will be a fitting tribute to the 50th anniversary of
the Universal Declaration of Human Rights.

The writer, a Griffith University graduate, works for the
Indonesian Ministry of Foreign Affairs.

Window: In theory, the ICC could try any person in the world,
including Indonesians. Yet, it is important to remember that an
Indonesian arrested abroad for having committed a crime will
already be subject to prosecution by another country.