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Rights Groups Fear Death By a Thousand Cuts

ROME.  In some ways, the Conference on the Establishment of an International Criminal Court (ICC) is going smoothly: there have been no derailments, no walk-outs by angry delegations and no deal-breaking controversies. But in other ways, some delegations and human rights groups worry, the conference is pushing ahead without actually getting anywhere.

Text on matters that were thought to be resolved ends up being re-opened for further discussion. Small technical details take hours to resolve. Some activists contend that, in areas large and small, language for a strong, independent ICC is being whittled down.

Jelena Pejic, senior programme officer for the Lawyers Committee for Human Rights, notes that for many rights groups and the "like-minded" group of nearly 60 nations, some critical areas - independence for the ICC prosecutor and a limited Security Council role in dealing with the Court - have been considered vital to the Court's success. But there are other items throughout the text that can similarly pose problems, she says.

"We don't want to say that there's only five or six issues that are crucial for a strong ICC, because you could get all those resolved and still have to watch out for the language as a whole," Pejic argues. For example, she says, if delegates agree on fairly broad grounds for governments to withhold cooperation from the Court, that alone could hurt the ICC's effectiveness.

There are other signs in which the progress of the ICC debate in Rome is being slowed by thousands of small disputes or delays over language. "We think some of this is deliberate," one European delegation member says. "Some countries want to say they are for the Court, but they raise up the same issues time and again, and it slows down the whole debate."

According to one  UN official, many of the disputes concern language which was thought to have been resolved in a series of preparatory committee meetings held in New York over the past year. In response to the steady build-up of tiny amendments and adjustments, Philippe Kirsch, chairman of the Committee of the Whole, Monday objected to the re-opening of any texts where consensus had previously been reached.

Despite that objection, many of the adjustments are important changes in adjusting what the Court can do. In recent days, governments have revised their stance on whether to allow military officers to justify any crimes on the basis of their orders, and have subtly changed the terms by which nations must accept ICC jurisdiction.

The debate on military responsibility concerned Article 32 of the text, which intends to place conditions under which military or civilian officers of a government could use the orders of their superiors as a justification for their actions.

As D.D. McAlea of the Canadian delegation said in a report last week, "many states...wished to address the interplay between superior orders and genocide or crimes against humanity rather than leave the text silent on these matters. A protracted debate...then ended in deadlock."

Ultimately, by week's end, delegates agreed that any excuse of superior orders was unacceptable unless the person making the excuse had to obey them and did not know the orders were unlawful and that the orders themselves were not "manifestly unlawful".

In other words, no orders to commit genocide or crimes against humanity could be excused by the claim of superior orders - a victory for Germany and Chile, two nations resolved never to let such excuses stand up in the ICC.

In the debate about ICC jurisdiction, Mexico requested changes in which the Court would defer to the jurisdiction of national courts unless the national legal systems had faced "substantial" collapse or posed "unjustifiable" delays in conducting trials. In both cases, the wording subtly raised the bar for the ICC to try cases, but in ways that many rights groups thought could be acceptable.

Overall, such debates - and even more minor changes in language - are yielding tentative, if sluggish, progress. But some diplomats are unconvinced that there is any real momentum to resolve all the pressing issues by the time the conference ends on Jul. 17.

"There are more problems than solutions so far," one Latin American delegate said. "All this debate is verbal games for the public opinion." One UN officials voiced an even greater worry: that there are rumours that the work on the ICC statute may not finish by mid-July, and could require still another conference to bring to a conclusion.


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