RIGHTS
US Proposal Could Hurt Criminal Court, NGOs Warn
By Farhan Haq
UNITED NATIONS, Mar 26 (IPS) - A proposal floated by the United States that would require an International Criminal Court (ICC) to defer to any competent national court on questions of war crimes could cripple efforts to try crimes against humanity, activists argue.
The United States, France, Russia and China in recent months have been at the forefront of efforts to limit the jurisdiction of a proposed ICC, arguing that any Court with global authority should be prevented from pursuing politically-motivated or frivolous cases.
Washington, however, upped the ante Wednesday at ongoing preparatory talks here on the scope and functioning of an ICC.
The United States introduced a proposal that would make the Court's prosecutor defer to any nation's own investigation of a case - unless the prosecutor determined that the national court was biased or not functional.
''That proposal would take us back from where we are today and would straitjacket the Court,'' argued Richard Dicker, associate counsel for Human Rights Watch.
Dicker said recent statements from France and the United States have sparked worries that both countries are willing to give up the idea that the U.N. Security Council could veto any ICC oversight of a case - but only if the states involved give their consent to ICC jurisdiction. Instead of the threat of a veto by the five permanent members of the Security Council, the veto ''would be extended potentially to all 185 (U.N.) member states,'' Dicker said. That in turn, he argued, would ensure the Court's ineffectiveness.
Mona Rishmawi, director of the International Commission of Jurists' Centre for the Independence of Judges and Lawyers, added that such a proposal for what some groups call a 'consent regime' would actually more restrictive than many states' current laws.
If top Iraqi officials were seized in Switzerland, she contended, they could potentially be charged now for suspected involvement in the 1988 massacre of Iraqi Kurds. Any requirement for state consent and deferral in most cases to national legal systems, Rishmawi argued, would then place Iraqi President Saddam Hussein in a position to approve or disallow international prosecution.
However, although the roughly 300 non-governmental organisations (NGOs) involved in the ICC discussions here find the U.S. and French ideas about state consent unacceptable, most of them also dislike the lingering idea of Security Council oversight of the ICC.
''No self-respecting, democratic country in the world would expect that its judiciary organ is subsidiary to its executive organ,'' argued Rishmawi. Allowing the five veto-holding Council members - Britain, China, France, Russia and the United States - to determine which cases an ICC can handle would reduce the Court to ''a faucet that can be turned on or off at will,'' Dicker contended.
Of the five permanent members, however, one - Britain - has shifted away in recent months from advocating a constant role for the Security Council, noted Jelena Pejic, senior European programme coordinator for the Lawyers Committee for Human Rights.
Instead, Britain has moved toward accepting a proposal, mooted first by Singapore, that would require a positive vote in the Council before any case currently being dealt with in that body could be taken out of ICC jurisdiction, Pejic said.
Under the Singapore compromise, any Council decision to take cases out of the ICC's hands would also require periodic renewal to stay in force.
The United States and France are expected to accept the Singapore compromise by the time that governments meet in Rome on Jun. 15 to begin month-long final negotiations on creating the Court, she said.
Meanwhile, some 60 nations around the world have pushed for a Court that will have considerable independence, with a prosecutor granted the authority to pursue investigations on the basis of any information received.
According to NGOs, that coalition of 'like- minded states' includes dozens of nations from Africa, Europe and Latin America as well as some Asian states like Singapore and South Korea.
The surge of support for the Court rose significantly last month, when 35 African states met in Dakar, Senegal, to vow that they will try to come to the Rome meetings with joint proposals supporting an independent and effective Court.
But many of those countries remain worried that the U.S. role could still consign the Court to ineffectiveness, argued Aref Mohamed Aref, an Amnesty International official.
''There is the growing feeling among African country delegates that the United States is willing to have a Court not for Americans, but only for others,'' Aref argued. That is a claim the United States rejects. Rather, argued U.S. Ambassador-at-Large for War Crimes Affairs David Scheffer, Washington wants to ensure that its troops deployed around the world are not subjected to frivolous or politically biased prosecution.
''We do have concern about a prosecutor who would act on his or her own authority,'' Scheffer contended, arguing that the U.S. military ''wants (its judicial) system to kick in first.'' Dicker countered that an inspection of the statute to create the ICC should show that ''the U.S. concern does not bear up.
There are already several screening devices (to prevent frivolous cases.'' In addition, Pejic noted, some nations are intending to back a proposal that would allow a pre-trial chamber to determine the merits of an ICC prosecution early on. Despite some tough negotiating here, Pejic cautioned that most of the heavy work will not be done until June.
The statute to create the ICC currently contains 99 articles, 175 pages and 1,700 'bracketed' passages of undecided or debated text - ensuring considerable haggling in the weeks to come. (END/IPS/fah/mk/98)