RIGHTS-UN
ICC and its Power of Prosecution
By Farhan Haq
UNITED NATIONS, Mar 17 (IPS) - Nations working to create a new International Criminal Court (ICC) are grappling with how much power to give to the office of prosecutor amid signs that some nations - notably the United States - want to restrict its authority.
Human rights officials contend that any new world criminal court can only be effective if it includes a prosecutor empowered to make 'ex officio' investigations - that is, the ability to look into crimes on the basis of information gained from any source.
The United States, however, is worried that such a degree of independence would make the prosecutor - in the words of U.S. Ambassador-at-large for War Crimes Issues David Scheffer - a ''master of the universe'' and accountable to no-one.
Instead, Scheffer said Tuesday, Washington favours a ''self- initiating'' prosecutor who still would require consent by either the U.N. Security Council or the state parties involved to being investigations.
But that proposal, some human rights advocates claim, would dangerously curtail the prosecutor's effectiveness. The debate over the role of the prosecution appears likely to occupy a major part of discussions at the three-weeks-long prepatory conference now underway on the shape and powers of the proposed ICC.
Nations are expected to agree on creating the Court and deciding its functions at Jun. 15-Jul. 17 meetings in Rome. Scheffer contended that, under U.S. proposals, the prosecutor would have considerable independence in conducting investigations - but only ''within a context'' in which cases are ''referred to the Court either by a state party or the Security Council.''
Without that context, he warned, the United States would fear that a prosecutor could easily carry out frivolous or politically- motivated inquiries.
Those fears are dismissed by some rights activists who are concerned that the focus on consent will render the prosecutor's office, and the Court, impotent.
''If the Court did not prosecute a case unless all five (veto- holding) permanent members of the Security Council ... gave their consent, there would be no prosecution,'' argued Richard Dicker, associate counsel of Human Rights Watch.
''The likelihood of state complaints is very limited,'' he added. Dicker argued that, if Iraqi President Saddam Hussein were hypothetically to be investigated for allegations that he planned a massacre of Iraqi Kurds in 1988, Baghdad could not be expected to consent to an ICC inquiry.
''There is enormous reluctance from states to bring complaints against each other,'' agreed Rhonda Copelon, director of the International Women's Human Rights Law Clinic. ''It almost never has happened ... so what will come before the Court is very questionable.'' Governments and human rights groups alike worry about whether the Court can be used to wage political vendettas, but disagree significantly on how best to curb that threat.
Some developing nations and the United States have pushed for greater oversight of the prosecutor's office but, for critics, that proposal itself could condemn the Court to being restricted to one-sided investigations - or ''victor's justice''.
The prosecutor must have independence to investigate all circumstances in any given situation, such as a war, in which crimes are committed, the Lawyers Committee for Human Rights argued in a recent report.
Otherwise, it claimed, ''restrictions on this investigative freedom would lead to absurd consequences, such as the Court only having jurisdiction over crimes committed by one side in an armed conflict.''
Scheffer, on the other hand, argued Tuesday that the Court should not oversee every single reported war crime, but those of ''a magnitude that is properly within the jurisdiction of the Court'' where national court systems are unfit to handle the task. ''This is not a human rights court; it is an international criminal court,'' he said.
The United States' main concern is to protect U.S. soldiers from charges that they may have acted improperly in any of the several nations in which they are deployed, sources say.
Scheffer acknowledged that, if Washington is not convinced that the proper checks exist with the Court's prosecution mandate, it may be less likely to deploy U.S. troops in troubled regions like Kosovo in the future.
One acceptable compromise might be to allow the prosecutor to have the independence to initiate investigations, but to place all prosecution under the ''stringent review'' of a ''pre-trial chamber,'' said Jelena Pejic, the Lawyers Committee's senior programme coordinator for Europe.
The idea that a pre-trial chamber would be able to monitor and prevent any politically-motivated cases already has the interest of France, another nation wary of granting too much authority to the ICC, Pejic noted.
''If France accepts that idea, it could really change the momentum for an independent prosecutor,'' she added. At the same time, activists say, Washington is moving closer toward easing its insistence on Security Council oversight of all ICC matters.
Several human rights experts contend that the U.S. government is ready, possibly even within the next few weeks, to announce that it will limit the need for Council approval of ICC cases only to vetoing some matters that are already being handled by the Council.
''The bottom line of our concern is that the Security Council be bale to perform its (U.N.) Charter responsibilities without being crippled'' by ICC investigation, Scheffer argued. Some activists, however, believe that Washington will not announce any significant change in its position on the authority of the Security Council until meetings begin in June. (END/IPS/fah/mk/98)