ICC to be inaugurated without U.S., India, China

Jonathan Power, Columnist, London

For the first time in the history of treaty making a signatory unsigned a treaty. That was the United States in March 2002 when President George Bush gave the order for the U.S. to pull out of the International Criminal Court (ICC), an institution that would probably have never got off the ground if his predecessor, Bill Clinton, together with American legal experts and non- governmental human rights activists hadn't been so behind it.

It seemed to many that the U.S. was shooting itself in the foot. Not only does the U.S. have a vested interest in making sure that the reach of a world institution with the legal right to detain and try war criminals is as robust as possible, but it alienated important political forces, particularly in Europe but also elsewhere, that has left a bad mark at the back of their minds. It makes for one more good reason why they don't rally to America's side in its plans for war with Iraq.

The UN and the institutions and conventions it maintains or midwifes, as diverse as the Kyoto Protocol on global warming, the peacekeeping secretariat, the human rights commission, the Conventions on the Rights of the Child and on Women, don't just spring back like a rubber band after they have been stretched out of shape by Washington. They hang rather limp and are a poor replica of the bodies with high tensile strength that they could be if the U.S. were four square behind them.

Next week the International Criminal Court will be formally inaugurated and will open its doors for business. The first candidate for indictment could have been Saddam Hussein if the U.S. had played its cards right. Although the Court has no retrospective power -- so the U.S. doesn't need to worry about skeletons in Henry Kissinger's cupboard (although individual countries can and have passed retrospective legislation) -- Saddam is clearly a present day human rights abuser.

There are now 139 signatories of the court and when on the Feb. 10 Afghanistan became a state party member there were 89 ratifications, well over the 60 necessary for formal approval of the Court and far ahead of what the most optimistic observers had hoped for. Philippe Kirsch, the Canadian chairman of the committee that negotiated the Statute establishing the Court, tells me that he hadn't expected the Court to have enough ratifications for another two or three years. This suggests that the Court has caught the mood of the moment.

War crimes are no longer tolerated in most places. No longer can a tyrant trade his immunity for peace. One powerful indicator of the sea change in sentiment is that twelve Arab countries who actually voted against the statute creating the Court back in 1998 have now stepped forward to sign up. In fact it is the first time in the history of treaty making that there are more signatories than original votes in favor.

Yet, as Kirsch explains, it was a lonely battle to get the statute approved in 1998. The mood then wasn't so propitious. Not just the "rogues" were against it but so were important heavyweights like India, China and Russia. The U.S. itself was prevaricating. On the one hand Clinton had given the cause an important early shove, but now he was being bested by the Pentagon as his political stock sharply fell because of the Monica Lewinsky scandal.

For the Pentagon the Statute was a Pandora's Box that could end up with senior American officers in the dock. Perhaps, it has been surmised, they could see ahead to the present day torture of al-Qaeda suspects, which the Washington Post has reported is being done in a number of countries with American connivance. In fact this issue is something of a red herring as torture is already prohibited under American law. One could expect the U.S. legal authorities to take seriously any bone fide accusation of torture by American intelligence or military personnel.

In fact in Rome the U.S. successfully negotiated many of the safeguards it sought. And a tidal wave of pro-Court sentiment from Third World nations, most strongly from Africa, made sure that a reasonably robust Statue was finally approved. Since Africa is now the continent where the most war crimes are committed the African enthusiasm for the Court was a profound statement of the African desire to be given a helping hand out of the abyss into which many of their countries have descended.

While the U.S. continues its campaign to distance itself from the Court -- its latest maneuver being to persuade countries to pledge not to extradite Americans for trial before it -- the acceptance of the Court elsewhere is growing. Russia has already signed and will probably ratify once it has got the Chechnyan conflict behind it. It is quite conceivable that both India and China will come round in the very near future to seeing the virtues of membership. Already China is showing much more flexibility on the issue and there are powerful voices in India in favor of signing up.

Perhaps this peer pressure will gradually have its effect on America. And perhaps too as the Court shows its mettle, trying some important war criminals and over time has a clear visible effect on deterring such behavior, American public opinion might be well won round. The Court is up and running next week. But it would run faster and better if America, India and China joined.