October 28, 2004

U.S. Presidency Shapes War Crime Tribunals

By Jennifer Hamm

THE HAGUE — Luis Moreno-Ocampo has diamonds on his mind.

As chief prosecutor of the new International Criminal Court, he’s been investigating the use of “blood diamonds” to help fund civil war in the Democratic Republic of Congo. The conflict there claimed three million lives from 1998 to 2002.

A professorial Argentinean with a trim beard, Moreno-Ocampo made his courtroom reputation in the 1980s as a prosecutor in the trial of the military junta leaders that ruled his home country in the prior decade.

Today, he considers the mass killings in the DRC to be the “most important case since World War II” and is aiming to make it the ICC’s inaugural trial.

Hearings are tentatively scheduled for early 2005, but funding troubles and legal questions from some of the world’s most powerful nations — including Japan, Russia and the United States — mean that the court is facing a trial of its own.

U.S. opposition

Based in The Hague, the ICC is intended to serve as the world’s first permanent war crimes tribunal, and handles cases against individuals. A sister organization, the International Court of Justice, addresses disputes between nations.

The ICC has jurisdiction in nations that are referred to it by the United Nations Security Council, or that have ratified the 1998 Rome Statute that called for the court’s creation.

As of this fall, more than half the world’s nations are members of the court, and President Bill Clinton endorsed it just before leaving office in 2001 — though not without citing “significant flaws” in the Rome Statute.

Among his concerns were the court’s presumption of jurisdiction over nations that haven’t signed on with it, and the potential for U.S. personnel facing “unfounded charges.”

In his endorsement, Clinton said that signing would put the U.S. “in a position to influence the evolution of the Court,” but told his “successor” to not send the treaty to the Senate “until our fundamental concerns are satisfied.”

Democratic presidential candidate John Kerry supports the court, but he also wants to ensure protection for Americans from “politically motivated prosecutions.”

Those same concerns were cited by President George W. Bush when he withdrew Clinton’s signature in May 2002.

“I understand that in certain capitals around the world that that wasn’t a popular move,” said Bush in his first debate against Kerry. “But it’s the right move not to join a foreign court that could — where our people could be prosecuted.”

President Bush also signed into law the American Servicemembers’ Protection Act, which grants citizens immunity from prosecution in any international criminal court which the United States is not a party to.

Through what Human Rights Watch called the “Hague invasion clause,” the law authorizes the U.S. to use “all means necessary and appropriate to bring about the release” of its citizens or allies held by the court.

The U.S. has also set about establishing “bilateral immunity agreements” with other nations to prevent the extradition of nationals from the U.S. and co-signing countries to the ICC.

Nations that refuse to sign BIAs have seen cuts in military and other financial support from the U.S., totaling $47 million last year, while many of the more than 80 countries that have entered into such agreements have enjoyed “some kind of quid pro quo,” said William Pace of the Coalition for the International Criminal Court.

“Discredit and destroy”

U.S. officials say that the authority to create the agreements derives from Article 98 of the Rome Statute, although proponents of the court say it is a misreading of the law.

The legal disagreements run deeper still: Jack Spencer at the Heritage Foundation considers several aspects of the ICC undemocratic and counter to American jurisprudence.

For example, he said, the court does not provide certain rights guaranteed by the U.S. Constitution, such as due process and trial by a jury of peers.

“That’s not acceptable to me as an American,” said Spencer, a senior analyst at the Washington, D.C.-based think tank.

He also said the U.S. “spills more blood and expends more treasure than any other nation” in support of international peacekeeping and emergency operations, and that a lack of protection for its citizens would be a disincentive for sending troops on such missions.

In fact, since the Rome Statue went into effect, the U.S. has withdrawn from peacekeeping operations in Bosnia-Herzegovina, Kosovo, Ethiopia and Eritrea.

Johan D. van der Vyver, a professor of international human rights law at Emory University and a self-described “party to the Rome conference,” said that it would be extremely unusual for an American soldier or citizen to be prosecuted in the ICC without the consent of the U.S. government.

“The U.S. in a sense does have a veto, because the jurisdiction of the ICC is excluded,” he said, if the federal government were to conduct its own “bonafide inquiry into wrongdoing.”

He described the U.S. attitude “really inexplicable, except as a matter of American exceptionalism, Americans are above international law.”

Van der Vyver said the court’s due process statute is a “model for the world,” and that for previous international war-crimes tribunals, such as those held in Nuremberg and Tokyo after World War II, the U.S. did not use juries.

He said that deep-rooted anger over the 1986 judgment by the International Court of Justice against American support of the Contras in Nicaragua has led the U.S. to undertake a “malicious campaign” to “discredit and eventually destroy” the ICC.

Victim needs

The court’s financial future remains uncertain without the support of heavyweight nations such as Russia, Japan and the United States, but in September the court’s assembly of participating nations approved a 2005 budget of nearly 67 million euros ($82 million).

The funding will support general operations, at least one trial and two more investigations.

Chief Prosecutor Moreno-Ocampo is investigating another six situations on four continents, and in 2005 is prioritizing what he described in a September speech as “the massive crimes committed in the Democratic Republic of Congo and Northern Uganda.”

The Heritage Foundation’s Spencer expressed doubts that “bloated, inefficient bureaucracies” could solve the worst of the world’s problems.

Even ICC proponents admit concerns over bureaucratic procedure.

Pace said he feared the court might repeat the mistakes of previous tribunals in nations such as Rwanda, where justice may have been carried out, but victims were not adequately informed.

He said his doubts were allayed after the court’s new budget provided funding to set up more field offices for victims.

J. Coll Metcalfe, a journalist who covered the Rwanda tribunal and is currently making a documentary about victims there, recalled 300-page decisions that would be “difficult for even a lawyer to make sense of.”

“And you can imagine what a genocide survivor in a remote Rwanda village understands of it,” he wrote in an email to Newsdesk.org.

If the ICC does not learn from these mistakes, Metcalfe noted, “it runs the risk of being viewed by the people victimized by crime as being a total farce.”

 

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