New UN court carries the torch from Nuremberg

THE VISION flickered briefly just after Nuremberg, before the Cold War descended and took the United Nations out of useful service for the best part of 50 years.

But now it is on the verge of reality. Delegates from more than 120 countries gather in Rome today to finalise a treaty setting up a permanent International Criminal Court under the aegis of the UN.

The 175-page draft they will pore over has been four years in the making. At least five more weeks of gruelling negotiation lie ahead, pitting supranational idealism against the dictates of raison d'etat.

But at the end of this uniquely violent century, the world has its best ever chance to set up an effective independent mechanism to deal with the perpetrators of war crimes, genocide and crimes against humanity. Whether it will take it is another matter.

On so complex an issue, agreement was never going to be simple. The nuances of opinion are almost infinite. But three broad camps of opinion have emerged. Ostensibly, the distinctions between them are legal. In truth, however, they are utterly political, and quite possibly irreconcilable.

One group, with India, Mexico and Egypt in the forefront, would sooner have no court at all. Another, led by the United States, China and France, wants an ICC, but one that is firmly subordinate to the UN Security Council. The third and largest grouping is of so-called "like-minded" countries. It favours a strong court, and in its mix of Europe, Canada, and small- and medium-sized developing states it resembles the coalition behind the 1997 anti-landmine treaty.

The main points of argument are four. The first is state consent. A genuinely powerful court would be able to initiate its own prosecutions. France, however, argues that a suspect's own country must first agree, a condition that surely would emasculate it from the outset. Would an Iraqi government consent to the indictment of Saddam Hussein? Flowing from this is a second dispute, over the precise powers of the prosecutors. Too much, says the US, and "rogue" prosecutors would be able to pursue vendettas by launching frivolous cases against Washington and its peacekeepers around the world.

A third bone of contention is the balance between the ICC and national courts. Obviously suspected criminals should be tried if possible in his own country and its laws. But precisely how is it to be determined when a national judicial system is either unable, or unwilling, to act?

But the biggest disagreement surrounds the ICC's relationship with the Security Council. The US and most other major powers insist that any prosecution must first be authorised by the Council. For advocates of a strong court, this is tantamount to a kiss of death, giving the five permanent members the right of veto. Or rather, four. This time Britain is on the side of the angels - ready to forgo its veto rights in the higher interest of an independent court.

Few of the objections stand up to serious scrutiny. If peacekeepers have committed war crimes, they should clearly be punished, whatever their nationality. And as My Lai showed, America is capable of trying such crimes by its own servicemen. As for rogue prosecutors, everyone agrees that their decisions should be subject to approval by a panel of judges.

A more serious complaint is that an unfettered court might interfere with delicate peace-making efforts by the Security Council. But not necessarily. As Bosnia demonstrated, the 1995 Dayton accords were signed despite explicit provision that war charges could still be brought against the likes of the Bosnian Serb leader Radovan Karadzic.

In reality, America's attitude to the ICC reflects its ambiguity to the United Nations as a whole. The reservations of France and China, among others, are born of recent practical experience. Prime candidates for the attentions of the ICC would have been the Hutu rulers of Rwanda, and Pol Pot. Paris in the first instance, Peking in the second, might have had some embarrassing complicities to explain at any trial.

So, is the game worth the candle? The deterrent effect of an international court is unproven, it may be said. Neither of the present ad hoc tribunals, dealing with the former Yugoslavia and Rwanda have achieved great things.

But such exercises do have a value. Whatever the failings of "victors' justice" at Nuremberg, few would argue that the leading Nazis should not have been put on trial.

Human rights groups accept that some compromise in Rome is inevitable if an ICC is to be created. Too much compromise however, and rather than a weak and over-politicised creature, they would prefer no court at all.

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooksA special investigation by Andy McSmith
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Austen Lloyd: Commercial Property Solicitor - Exeter

Excellent Salary: Austen Lloyd: EXETER - A great new opportunity with real pot...

Austen Lloyd: Senior Private Client Solicitor - Exeter

Excellent Salary: Austen Lloyd: EXETER - An outstanding senior opportunity for...

Sauce Recruitment: Retail Planning Manager - Home Entertainment UK

salary equal to £40K pro-rata: Sauce Recruitment: Are you available to start a...

Ashdown Group: Front-End Developer - London - up to £40,000

£35000 - £40000 per annum: Ashdown Group: Creative Front-End Developer - Claph...

Day In a Page

HIV pill: Scientists hail discovery of 'game-changer' that cuts the risk of infection among gay men by 86%

Scientists hail daily pill that protects against HIV infection

Breakthrough in battle against global scourge – but will the NHS pay for it?
How we must adjust our lifestyles to nature: Welcome to the 'Anthropocene', the human epoch

Time to play God

Welcome to the 'Anthropocene', the human epoch where we may need to redefine nature itself
MacGyver returns, but with a difference: Handyman hero of classic 1980s TV series to be recast as a woman

MacGyver returns, but with a difference

Handyman hero of classic 1980s TV series to be recast as a woman
Tunnel renaissance: Why cities are hiding roads down in the ground

Tunnel renaissance

Why cities are hiding roads underground
'Backstreet Boys - Show 'Em What You're Made Of': An affectionate look at five middle-aged men

Boys to men

The Backstreet Boys might be middle-aged, married and have dodgy knees, but a heartfelt documentary reveals they’re not going gently into pop’s good night
Crufts 2015: Should foreign dogs be allowed to compete?

Crufts 2015

Should foreign dogs be allowed to compete?
10 best projectors

How to make your home cinema more cinematic: 10 best projectors

Want to recreate the big-screen experience in your sitting room? IndyBest sizes up gadgets to form your film-watching
Manchester City 1 Barcelona 2 player ratings: Luis Suarez? Lionel Messi? Joe Hart? Who was the star man?

Manchester City vs Barcelona player ratings

Luis Suarez? Lionel Messi? Joe Hart? Who was the star man at the Etihad?
Arsenal vs Monaco: Monaco - the making of Gunners' manager Arsene Wenger

Monaco: the making of Wenger

Jack Pitt-Brooke speaks to former players and learns the Frenchman’s man-management has always been one of his best skills
Cricket World Cup 2015: Chris Gayle - the West Indies' enigma lives up to his reputation

Chris Gayle: The West Indies' enigma

Some said the game's eternal rebel was washed up. As ever, he proved he writes the scripts by producing a blistering World Cup innings
In Ukraine a dark world of hybrid warfare and murky loyalties prevails

In Ukraine a dark world of hybrid warfare

This war in the shadows has been going on since the fall of Mr Yanukovych
'Birdman' and 'Bullets Over Broadway': Homage or plagiarism?

Homage or plagiarism?

'Birdman' shares much DNA with Woody Allen's 'Bullets Over Broadway'
Broadchurch ends as damp squib not even David Tennant can revive

A damp squib not even David Tennant can revive

Broadchurch, Series 2 finale, review
A Koi carp breeding pond, wall-mounted iPads and a bathroom with a 'wellness' shower: inside the mansion of Germany's 'Bishop of Bling'

Inside the mansion of Germany's 'Bishop of Bling'

A Koi carp breeding pond, wall-mounted iPads and a bathroom with a 'wellness' shower