Terraviva: The Conference Daily Newspaper The Conference Daily Newspaper
Speak Now (or forever hold your peace)

ROME.  Delegations at the Conference on the Establishment of an International Criminal Court (ICC) face a task Wednesday that is both easy and difficult: paring down a narrowing series of options on the Court's jurisdiction and powers into an acceptable compromise package.

That effort will continue to be hard because most of the pressing disputes - including the relationship between the ICC and the Security Council, the independence of the prosecutor, definitions of core crimes and the Court's jurisdiction - remain unresolved.

Even the main attempt to clarify the myriad disputes into a discussion paper, forged after discussions this weekend arranged by Canada, is both simple and complex, suggesting the removal of some options but leaving in place most of the contentious proposals about the ICC.

The one thing that was clear, as one diplomat acknowledged, is that all of the delegations will find at least some of the options still on the table unacceptable. The Canadian-initiated compromise, designed to test the waters, is the signal for concerned groups to push for the kind of tribunal they want. The tough negotiations this week thus mark a crossroads and could well determine whether the ICC takes the shape of the Court pushed by the "like-minded" group of some 60 nations, or that pushed by the US and France, among others.

Already, some delegations are upset that the discussion paper does not include some of the options most favoured by the "like-minded" group, which has pushed the hardest for a strongly independent Court and prosecutor.

Some like-minded states complained that the paper drops language initially sponsored by Germany that would allow the Court to have inherent jurisdiction over at least the core crimes of genocide, war crimes and crimes against humanity.

Instead, the discussion text includes an option proposed by South Korea that would give the Court jurisdiction conditional upon the consent of any one of four types of involved parties: the state in which a crime is committed, the one which holds the accused party, the state of which the suspect is a citizen and the state of the victim's nationality.

Two other options - a British one which would seek the consent of either the territorial or custodial states, or an Indian one seeking the consent of the state of the suspect's nationality - are also on the table.

"There will be some concern that inherent jurisdiction is being dropped," said William Pace, convenor of the Coalition for an International Criminal Court. But he added that the Korean proposal "preserves some of the essence of universal jurisdiction".

The discussion paper, argued Pace, "reflects that all of the options for a fair, effective and independent Court are still seriously being considered and seem to have a plurality, if not a majority, of support." Now, he said, the crucial task is for the backers of a strong Court to speak up at this week's debate to show the level of support for a successful conclusion to the conference.

The dropping of the German option, one delegate countered, is an example of how the compromise process works. By removing the option that gives the Court the greatest jurisdiction, he argued, the discussion paper makes South Korea's compromise proposal one of two extremes, and therefore favours the British compromise.

In a separate case, the text allows two options for prohibiting the use of certain weapons of mass destruction: one, preferred by the United States, which does not include landmines or nuclear weapons, and another, supported by many non-aligned states, which does. But other options that would have criminalised the use of any "inherently indiscriminate" weapons have been dropped.

The text, the delegate contended, "seems to leave all the options open, but the way they are listed, some options are favoured and the radical positions become the compromise".

Some of the like-minded nations are concerned enough about the potential loss of ICC inherent jurisdiction that they may bring up that option anew when the ICC Committee of the Whole begins to discuss the text, as is expected Wednesday.

Other facets of the document are no less problematic. Although many definitions of war crimes and crimes against humanity have been included in the discussion text, most items concerning gender violence - such as rape, sexual slavery, forced prostitution and forced pregnancy - have been left aside "subject to further discussion".

"I am extremely worried that (the language on gender violence) will be dropped altogether," said Betty Muringi of Kenya's Federation of Women Lawyers. "We thought this had been agreed upon...Now we have to start from scratch. On my part, I'm very surprised that this had come from the Canadians."

The NGO Women's Caucus responded by warning that "essential components of justice for women - including unbracketed text - have come under systematic attack here by a small minority of delegations at this conference...This emerging attack resembles all too clearly the prolonged attack on women's human rights resoundingly rejected at the Beijing (Fourth World Women's) Conference."

Still other matters are left on the table for further bargaining. Among them are the Singapore compromise, which allows the UN Security Council to remove items from the ICC docket for 12-month terms but does not require Council approval for the ICC to try cases.

Although committee chairman Philippe Kirsch brought together nearly 30 nations for the closed-door meeting Sunday which helped to develop the discussion paper, many delegations complained that they had only a little time to study the actual paper Tuesday before being expected to formulate their own positions for the following day. A few have already contended that they will need more time to join the discussion.

However, officials at the conference are clearly pushing to have some language on a compromise ready by week's end. The United States has also considerable interest in the array of options - even though many NGOs still doubt that Washington will sign on to the statute anytime soon. Farhan Haq/IPS 


Copyright © IPS-Inter Press Service. All rights reserved.
Reproduction prohibited unless written permission is obtained from IPS-Inter Press Service.

Home