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.