A treaty
conference
creating
[an
International
Criminal
Court] will
open in
Rome this
summer.

Why? One reason has been a historical lack of resolve within the international community to bring these criminals to justice. Another reason is the lack of a permanent international court designed to investigate and try these types of cases. The latter problem may be solved when the nations of the world meet in Rome this summer to create an International Criminal Court (ICC).

Supporters of the ICC hope to solve these problems. A treaty conference creating the new court will open in Rome this summer. Participants will have to come to agreement on a number of key issues and approve an international statute establishing the court. There are fierce debates over many vital, and not so vital, undecided elements of the ICC. A leading human rights nongovernmental organization, Amnesty International, has summarized sixteen principles it feels must be included in the treaty statute to ensure that the new ICC is just, fair, and effective. They are:

1. The court should have jurisdiction over the crime of genocide.

2. The court should have jurisdiction over other crimes against humanity.

3. The court should have jurisdiction over serious violations of humanitarian law in armed conflict.

4. The court must ensure justice for women. The statute should include jurisdiction over rape, enforced prostitution, and other sexual abuse as crimes against humanity, when committed on a systematic or large-scale basis and as serious violations of humanitarian law in armed conflict.

5. The statute should provide that all states when ratifying or acceding to the statute consent to the court having inherent (that is, automatic) jurisdiction over the three core crimes of genocide, other crimes against humanity, and serious violations of humanitarian law. No further state consent should be required.

6. The court must have the same universal jurisdiction over these crimes as any of the state parties to the treaty.

7. The court must have the power in all cases to determine whether it has jurisdiction and whether to exercise it without political interference from any source.

8. The court should be an effective complement to national courts when these courts are unable or unwilling to bring to justice those responsible for these grave crimes.

9. An independent prosecutor should have the power to initiate investigations on his or her own initiative based on information from any source, subject only to appropriate judicial scrutiny, and present search and arrest warrants and indictments to the court for approval.

10. No political body, including the UN Security Council or states, should have the power to stop or even delay an investigation or prosecution under any circumstances whatsoever.

11. To ensure that justice is done, the court must develop effective victim and witness protection programs.

12. The court must have the power to award victims and their families reparations.

13. The statute must ensure suspects and accused the right to a fair trial in accordance with the highest international standards at all stages of the proceedings.

14. All states parties, including their courts and officials, must provide full cooperation without delay to the court at all stages of the proceedings.

15. The court should be financed by the regular UN budget, supplemented (under appropriate safeguards for its independence) by the peacekeeping budget and by a voluntary trust fund.

16. There should be no reservations to the statute.

• The Security Council, as the preeminent international body entrusted with maintaining peace, should have standing, like a prosecutor, to initiate judicial intervention.

• By referring a situation to the ICC, the Security Council would shoulder part of the political burden associated with pursuing sensitive investigations and prosecutions and states would feel additional pressure to cooperate with the ICC knowing that the investigation is at the behest of the Security Council.

• A clear right of referral would eliminate ambiguities that often spark turf battles between international institutions, fostering the cooperation and harmony that will be needed to make the court effective.

• Without the right to refer situations to the ICC, the Security Council would have the incentive to create additional ad hoc tribunals whose dockets it could better control.

The statement from Amnesty International says, "There is only one truly effective method to ensure that all cases which should be brought before the court are brought. An independent prosecutor should be able to initiate investigations of any crime within the court's jurisdiction on his or her own initiative, based on information from any source, and present search and arrest warrants and indictments to the court for approval without state interference."

Under the latest draft of the ICC treaty, however, the prosecutor will only be able to act if a potential criminal situation is referred to him or her by the Security Council, one of the states which has signed the treaty, or a group of states. The US government, among others, supports this approach.

Other options have been discussed. Singapore has proposed that the prosecutor be able to start ICC proceedings but that the Security Council could stop those actions if it determines that the case may be detrimental to a peace agreement being negotiated. According to the conference report, "Some participants favored this proposal because Security Council jurisdiction is presumed; but, unlike the current language, the Security Council would need to make a public and politically sensitive finding that continuation of an investigation or prosecution is unwise. This would discourage overt or excessive intervention by the Security Council."

Many, though, balk at any ability of the Security Council to halt ICC activity. They say the very idea that justice might be detrimental to peace agreements undermines the "growing international appreciation of the critical role justice plays in solidifying the peace."

This issue may be the key not only to getting a treaty finalized in Rome but also to getting it through the US Senate and other national legislatures which must grant approval. The conference report, however, urges negotiators to focus on creating the best court possible before worrying about the politics of getting the measure approved. The report concludes, "In the long run, a well-functioning court will garner the most support. Once the credibility, prestige, and strength of the court are established, it is anticipated that the court will be universally accepted."

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