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Commentary: (Dis)order and the Court

ROME.  We have yet to make our way out of this politico-legal maze called the Conference on an International Criminal Court (ICC) is, but the last few weeks have underlined two trends in the search for a workable court.

Point One. Much of the muscle-flexing and posturing reflect a questioning of global power equations in the years following the Cold War - and attempts to draw up new rules in the new world disorder, as some have called it.

This may well be one of the messages behind arguments like that of Cuba, when it seeks to make economic blockades a crime against humanity, or of India, when it blasted as "de jure impunity" the idea that the UN Security Council would have Court under its thumb. Gone are the days when the views of superpowers made for "international consensus" and an international conference shaped solely by the superpowers -- though a compromise proposal being bruited about does hinge quite heavily on the US and other UN Security Council members.

Still, it might be worth asking: how far are the some 60 members of the like-minded group willing to go to assert what is supposed to be a growing consensus for an independent, powerful and functioning Court? (Sixty countries is not far from a third of the UN membership and that is the level a good number of governments want as the threshold for ratifications so the ICC state may enter into force.)

After testing the waters for nearly a month, are they willing to tell countries like the United States, that they are going ahead? Is a critical mass in sight?  Canada has just taken the lead in bringing some 30 countries together in an attempt to put together a compromise package, whose elements are due to be put in a paper to be distributed today. The package is likely aimed at trying to please everyone -- and because it aims to do that, will probably not please anyone.

Under pressure from all quarters, especially its neighbour, Canada is feeling the pulse: If it obtains a solid majority in support, then the official proposal in the end is likely to closer to what the like-minded bloc had in mind at the outset. But if the draft compromise gets weak support, or indifference, then a watered-down version is likely to be emerge - one probably closer to what the US (and France) had in mind. The shape of this deal will be hammered out in the coming days and the formal proposal should be out by end of the week.

Point Two. Whoever said "national sovereignty" would soon become a relic of history was wrong: It has been on full display at the ICC discussions, where it has been invoked again and again, not least to 'balance' the power of a super-prosecutor that would in effect hold any person or government accountable for serious abuses within his, her or its territory.

In the hopeful years immediately after the end of the Cold War, many analysts said the collapse of old ideological fault lines would open borders and usher in a period of cooperation between erstwhile foes. But forming economic blocs has turned out to be much easier than keeping political peace or drawing up new rules for the international order - not least a legally binding document like the ICC treaty.

The ICC was probably fated to stumble from legal pothole to legal pothole, because unlike past UN conferences which turned out over-arching declarations, this document has to be squared with civil and criminal laws and legal systems that vary from region to region.

But while there is room for minute analyses, legal eagles should not lose sight of why they gathered here in the first place, especially as delegations have buckled down for a decisive week this week. Surely, the law, or any legal document, was meant to serve a higher purpose.

There is no shortage of reasons why we need an ICC. Instead of the world wars of old and the ideological skirmishes of the Cold War, today we see smaller wars where the rules of conflict and human decency often don't exist and which are 'small enough' for the world to close its eyes to, or tire of, as in the case of Afghanistan.

The point is driven home by one fact: After the Tokyo and Nurembeg courts, which were set up in the context of world wars, the only other ad hoc tribunals on war crimes in the former Yugoslavia and Rwanda were created only in recent years, after the Cold War, and for local conflicts. Johanna Son/IPS 

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