JP/3/B00

JP/3/B00

Int'l criminal court: Deterrent 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.