Iraq Crisis: Judicial powerhouse that will safeguard the new world order
Moves are under way to establish an international criminal court. Rupert Cornwell examines the options
Known for his commentary on international relations and US politics, Rupert Cornwell also contributes obituaries and occasionally even a column for the sports pages. With The Independent since its launch in 1986, he was the paper's first Moscow correspondent - covering the collapse of the Soviet Union – during which time he won two British Press Awards. Previously a foreign correspondent for the Financial Times and Reuters, he has also been a diplomatic correspondent, leader writer and columnist, and has served as Washington bureau editor. In 1983 he published God's Banker, about Roberto Calvi, the Italian banker found hanging from Blackfriars Bridge.
Monday 16 February 1998
Real life of course would not be quite like that. A Saddam thus cornered would undoubtedly be shot or strung from the nearest lamp-post (most probably both), either by foreign invaders or some of his less adoring subjects. But just suppose he was captured. One thing you couldn't do, despite his proven record of torture, murder, pillage and partial genocide, would to treat him as you would a common criminal charged with offences a fraction as serious.
You cannot put him on trial for the simple reason no court for that purpose exists. What is needed is a fully-fledged international criminal court (ICC). And, mirabile dictu, it looks as if we're going to get one.
In many respects, miracle is the right word. Not even the unavoidable but flawed process of Nuremberg could prod the world into creating a supranational tribunal for war crimes and crimes against humanity. The hope then was, "never again". But the wretched truth since Nuremberg has been, "again and again and again". Man's savagery to man has continued unabated through the second half of this bloodiest of centuries. A permanent UN court to bring individuals to account was deemed, in that most mealy-mouthed of a diplomat's epithets, "impracticable".
So all we have today is the International Court of Justice at the Hague, essentially a civil court dealing with disputes between countries, plus two ad hoc international criminal tribunals, on the former Yugoslavia and Rwanda. The first has been at best modestly successful. Of the second, the less said the better.
The failings of the present system - the delays, the disputed powers - have only underlined the need for a permanent international institution to try suspected war criminals in cases where national judicial systems have been unable or unwilling to do the job. And the five-year process of creating one has reached a surprisingly advanced stage.
In just 10 days time in London, EU officials will review the latest ICC treaty draft. In mid-March a final preparatory conference will be held in New York, attended by 140 or more countries. Then in Rome this summer the foreign ministers will settle a draft treaty. Upon ratification, an International Criminal Court will become reality.
The question is, how powerful - in other words, how independent - will it be? Will it be able to instigate investigations and hand down indictments on its own; or will it have first to gain the approval of the government of the accused individual, or of the UN Security Council (thus giving the five permanent members the right to veto a trial that might prove embarrassing)? The answer, as ever, lies largely in the hands of America.
It is America, with the vociferous support of France, that wants a "weak" court, firmly subordinated to the Security Council. One of its objections is reasonable enough - that the US unique role as a global military power could see its soldiers and policymakers at the wrong end of frivolous, politically-motivated charges of human rights abuse. The others mainly reflect its visceral prejudices against the UN and all its works. On any rational assessment, the case for a strong and independent court is unanswerable.
First and foremost, it deals with the principal objection to Nuremberg, of a "Victors' Justice" based upon dubious concepts of law. An ICC trial would reflect the considered judgment of an international panel of permanent prosecutors, expert in the field of atrocities and human rights abuses, and drawing on a growing corpus of relevant international jurisprudence.
Nor would the ICC be just another manifestation of Western cultural imperialism, arrogantly imposing our standards on a world that neither shares nor wants them. The most heartening aspect of the current debate is the support for a "strong" court from Third World countries, several of whom have suffered human rights abuses which would have landed their perpetrators in its dock.
Indeed a permanent international court could help new democracies in that most difficult of tasks - dealing with their own state criminals of the recent past in a manner that is something more than naked vengeance. And for once Britain, instinctively suspicious of anything that smacks of idealism, is on the side of the angels.
We may slavishly adhere to the US-patented Rambo school when it comes to Iraq. But on the matter of the ICC we have broken with the Americans. For that, thank the "ethical" foreign policy - founded on principle, cleansed of moral squalor - which is meant to define this Government's dealings with the world. Unlike Saudi Arabia and pending arms deals, the court is 24-carat ethics with no practical disadvantages.
Of course there is no guarantee the ICC will work. The US and France may yet manage to emasculate it. A host of other questions remain: to what arm of the UN the court will be accountable; whether trials in absentia will be permitted, and how to prevent a prosecution if it endangered peace and security. Absolute idealism can be too expensive a luxury. But if it causes even one wicked leader or his henchmen to think again, over even one intended bestiality, the court will already have proved its worth.
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