Int'l criminal court: Caution to the wicked?

Bantarto Bandoro, Editor, 'The Indonesian Quarterly', Centre for Strategic and Internationl Studies, Jakarta

After much delay and doubt over whether the East Timor human rights trial would ever go head, early this year Indonesia finally took the historic step of opening a human rights tribunal to prosecute those allegedly responsible for the violence in East Timor in 1999, when the former Indonesian province voted for independence.

The step was welcomed by certain members of the international community as Indonesia demonstrates its seriousness in trying those accused of crimes against humanity. Yet there has been widespread concern about whether the trial will be conducted properly and fairly. The world is also watching closely in the hope that Indonesia can prove that no one, no matter their rank or status, is above the law.

In the event that the national legal process proves unable to deliver justice, some have raised the alternative of an international human rights tribunal. The idea was raised earlier, given the government's slow progress in initiating the trial.

Officials insisted a national court would be better than an international court, adding that the international community must respect Indonesia's decision. The Secretary-General of the United Nations, Kofi Annan, however at one time hinted that if the end results of the process were unsatisfactory, an international human rights tribunal would be an alternative.

Indonesia has experience enormous pressure from the international community in just getting to the point of deciding to adopt a national human rights tribunal. Strong demands for justice from an international institution have added strength to the international community, as it sets to move a step closer toward establishing an international criminal court. The last few ratifications of the international treaty on a permanent international court are expected to be lodged during a ceremony at the UN in New York this week.

This event will bring into being potentially the most important human rights institution created in 50 years.

Its task will be to pass judgment on the most grievous war crimes and crimes against humanity across the world, committed after it comes into being. Supporters of this court see it as pioneering a new era in which countries and individuals will be more easily held accountable for violations of international humanitarian laws, because it has the ability to try those accused of genocide, crimes against humanity and war crimes. This is indeed a historical development.

One of the new court's most important aspects will be its permanent status. Until now, international tribunals have been established on an ad hoc basis. What an international court can do in contrast to a national court is bring with it a layer of objectivity and impartiality that at times is difficult to obtain in a domestic setting. This is rather an optimistic view of the role of the international criminal court.

But there are still some empty chairs at the court. The court would be a near-perfect solution to human rights abuses around the world if every country participated. Only then could real and impartial justice be assured. Like all multilateral institutions, the international criminal court will only be as strong as its constituent parts, and there are some fairly serious international players missing. Russia, China and the United States have so far failed to ratify the Rome treaty establishing the court.

As long as they scoff at the dictates of an international court, there is no possibility for the court to play a significant role in trying war criminals. The international criminal court would be reduced to a big costly showpiece. This would certainly guarantee uncertainty in the execution of the law. It is doubtful then that the court would be a deterrent to the wicked. It is indeed a deep regret that some major countries are not willing to put their energy at the disposal of international justice, particularly when we are talking about international justice versus terrorism. In the latter, one would think that it was perhaps better for countries to deal with their own defendants.

We have seen that those few countries which do undertake national prosecution of crimes against humanity are often engaged in victor's justice, further tainted by unfair procedures and verdicts, as in Rwanda and Ethiopia. Other national prosecutions are incomplete and sometimes constrained, as in Argentina, where a handful of junta leaders were prosecuted and then freed after only a few years in prison.

Will Indonesia share such experiences? We will have to watch this trial closely to see whether verdicts are manipulated to protect senior officers. Perhaps the key issue is whether the government has the true political will to administer justice. If not, demands for an international tribunal will be revived.

The unequivocal message from an international court is that where domestic legal order has broken down, or where national authorities are unwilling or unable to punish gross violations of human rights and international humanitarian law, the international community has an obligation and a responsibility to respond. With the coming into force of the Rome Statute, the international community will have accepted that responsibility.

Thus, those who have campaigned long and hard for this day are confident that justice will prevail, and nations that are yet to embrace the international criminal court will soon become convinced that it is a force for good. Although the national human rights trial is now underway, Indonesia cannot escape from the forces that will be part of the determinant factors for justice.