MALAYSIA Independence is Key to Global Criminal Court By Anil Netto

MALAYSIA
Independence is Key to Global Criminal Court
By Anil Netto

PENANG, Malaysia, Jun 3 (IPS) - Upcoming negotiations to create a permanent International Criminal Court (ICC) must produce one that is insulated from political pressure coming from the big global powers, Malaysian activists say.

The activists are watching to see how independent and impartial the tribunal -- which will be the subject of month-long negotiations in Rome from June 15 onward -- can really be when looking into genocide, war crimes and crimes against humanity.

Already, there is concern about the clout of the planned court given strong reservations from four of the five-member Security Council -- China, Russia, France, and the United States.

At the same time, one of the key issues in the Rome negotiations is how much of an oversight function the Security Council would have over the permanent tribunal.

While some countries say Council authorisation would prevent parties from taking advantage of the court, others say putting it under the purview of the Security Council would make it useless.

Malaysian activists say claims by countries like the United States and France about the court curtailing peacekeeping operations or singling out its nationals were unfounded.

''That's rubbish,'' retorted Malaysian political analyst and writer Fan Yew Teng. ''Do they (the major powers) have something to hide?''

''Once the court is dominated by the Security Council, it won't be able to work. It will be full of politics,'' Fan added.

''It would be stacked in favour of the major powers,'' agrees an expert on international relations from the Science University of Malaysia in Penang, who declined to be identified.

Under the control of the Security Council, the court could too easily become another venue for the unilateralism that critics of the current political order have been complaining about, activists here say.

''A truly independent ICC would not only go after people like Saddam Hussein for invading Kuwait, but would also go after people like George Bush for bombing Iraqi civilians -- including women, children, the old and the sick - during the Gulf War,'' Fan pointed out.

In the run-up to the Rome talks, critics of the planned court have been trying to erode support for it. Supporters like the European Union, including Security Council member Britain, have been lobbying for an ''effective, functioning, independent and thus credible'' institution.

But the U.S. Pentagon has been organising a campaign against a broad mandate for the ICC, worried that officers and soldiers in U.N. peace-keeping operations could be hauled up by powerful prosecutors of the international court.

Washington wants veto power over the proposed court and would like to subject it to Security Council authorisation. France is pressing for the right to reject the ICC's jurisdiction over cases involving its nationals.

While in theory allowing Security Council authorisation may sound logical, critics' worries stem from the fact that the Council's composition has yet to become more representative of today's world. Given the shape of the Council at present, Fan said: ''The ICC should be de-linked from the Security Council.'' Malaysia's foreign policy, under Prime Minister Mahathir Mohamad, has always taken a strong stand on issues like nuclear weapons and ethnic cleansing in Bosnia.

Kuala Lumpur is also likely to push for an independent court among members of the Association of South-east Asian Nations (ASEAN), local activists say. ''The issues are broad enough for ASEAN governments not to object,'' one diplomatic observer added.

Fan says the court can theoretically be used to address the plight of aggrieved parties such as Iraqi civilians, who continue to live in misery as a result of international sanctions.

Rights workers in Malaysia add that ICC could perhaps look after the interests not just of governments and nations, but also human rights issues and the interests of ethnic and religious minorities such as the Kurds.

Others hope that non-governmental organisations -- and not just states or the Security Council -- would have the right to complain about rights violations to ICC prosecutors.

It is this potential for the court to become the fora for groups whose voices are not normally heard, that worries many of its critics.

Likewise, the sort of military forays that the big powers engaged in previously could now possibly fall within the scope of the proposed court, though it is not yet clear if acts of aggression such as invasions, bombardments, blockades, and annexations will fall under the ICC's jurisdiction.

International groups like Amnesty International also list independence as one of the 16 principles it believes are needed if the court is to have real teeth.

''No political body, including the Security Council, or states, should have the power to stop or even delay an investigation or prosecution under any circumstances whatsoever,'' Amnesty said in a position paper.

Activists also say the record of countries like the U.S. in snubbing decisions of international bodies like the World Court, when Washington disagrees with them, does not speak well of the U.S.' respect for international norms.

Fan recalled that in the mid-1980s, the United States had ignored a World Court ruling to stop the mining of Nicaraguan harbours and ports. ''The decisions of the ICC must be enforceable,'' he added. Malaysian activists also the ICC must also have independent judges, as differentiated from World Court judges that are appointed by governments.

Amnesty has called for an independent prosecutor with the power to initiate probes, subject to judicial scrutiny, and to present search and arrest warrants and indictments.

But just as important as the political power and membership of the court is the resources it will have to function well. As in other U.N. negotiations and bodies, resources are a key test of the world community's commitment to support a permanent ICC. (END/IPS/AP-HD-IP/AN/JS/98)