RIGHTS Brackets Surround Proposed ICC Statute

RIGHTS

Brackets Surround Proposed ICC Statute

By Farhan Haq

UNITED NATIONS, May 19 (IPS) - Even by past standards of international treaties, the draft statute for the proposed International Criminal Court (ICC) is vague and runs to a hefty 166 pages in English, with hundreds of key passages undecided.

The world's nations have until mid-July to sort out debates over the Court's jurisdiction, powers, composition, financing and related matters during a five-week meeting that begins Jun. 15 in Rome.

But with more than 1,700 passages of the draft statute in brackets - indicating disagreement among governments over wording - almost every issue central to the ICC's existence is still open for discussion. Brackets appear around the question of whether or not the Court can apply the death penalty; on whether the Security Council has pre-eminent authority over the Court or not; and on how much jurisdiction the ICC prosecutor has to initiate investigations.

Even entire areas of criminal activity may or may not appear before the Court, depending on how the brackets are decided. Three distinct categories of crimes - crimes committed against U.N. personnel, terrorism and drug trafficking - are all bracketed, and may be dropped from the Court's agenda during the Rome meeting.

So far, the only definite crimes the ICC will be judging are those of genocide, crimes against humanity and war crimes. Ironically enough, although Trinidad and Tobago first broached the idea of setting up a world criminal court in 1989 in order to combat drug trafficking, the focus of the Court's responsibilities have shifted significantly since then, says Hans Corell, U.N. under-secretary-general for legal affairs.

Possibly a larger problem for the Court is another item whose inclusion on the ICC docket still must be decided: whether or not crimes of aggression will be tried.

Human rights groups strongly desire some means of punishing aggression, as distinct from war - but specifying what the distinctions are has caused a major headache.

''The crime of aggression is considerably more complex, since it is difficult to have a clear definition of what aggression is,'' concedes Corell. Nevertheless, the draft statute takes several stabs at it.

Under one bracketed option, a crime of aggression could involve planning or executing an armed attack or use of force in violation of the U.N. Charter.

A second option would be to explicitly involve attempts to annex or occupy the territory of another sovereign state. In still another option, crimes against aggression would include a large list of offenses, including blockades of ports, invasion or bombardments of states, the sending of mercenaries or the use of one state as a base for attacks against another one.

The aggression debate offers a good example of why some supporters of the Court wonder whether it will have the teeth to become an effective body. As one human rights activist, who spoke on condition of anonymity, argued, many important states carry out acts that would easily fall under most of the specific definitions of crimes of aggression.

The U.S. embargo against Cuba, Israeli occupation of the West Bank and Southern Lebanon, China's annexation of Tibet and the Russian war in Chechnya could all count, he opined.

Some of the controversies over the ICC have already guaranteed that several key nations will not support it, at least initially. U.S. officials admit that the Republican-led Congress is not ready to sign on, while dozens of other countries remain openly wary of some of its aspects - from French insistence on Security Council control over the body to the desire of many countries to seek permission of concerned states for any ICC investigation.

However, U.N. officials remain upbeat that the debates surrounding the Court will be answered soon enough. Agreement will come, Corell saysd, when member states realise they must cooperate for the body to exist at all. As it is, he says, some answers are emerging over at least some of the issues remaining under bracketed text.

The Hague, for example, has indicated its interest in hosting the Court, although the final location remains undetermined; while nations have largely agreed in favour of preventing any retroactive prosecutions, and agreed against the imposition of the death penalty. ''Imprisonment is the main focus here,'' Corell says of the latter dispute, adding that many countries have already abolished national death penalties.

The draft statute for the ICC ''is only slightly shorter than the Charter of the United Nations itself,'' observes John Washburn, co-chairman of the Washington Working Group on the International Criminal Court. Despite the brackets, he believed the statute remained a victory for supporters of a world criminal court because, after years of complex debate, ''it is a single, unified, consolidated text.'' The next two months will reveal whether it will finally become a detailed, concrete one as well. (END/IPS/fah/mk/98)