US in the dock over international justice
The Times (London), January 7, 2003
Sylvia de Bertodano
Last year
was an historic one for international justice -it brought
the long-awaited establishment of a permanent International Criminal
Court (ICC) in The Hague. As the Assembly of States Parties -the body
of nations that have ratified the ICC statute -gathers in New York
next month to elect its judges, the United States' seat will be
conspicuously empty. The Bush Administration has refused to ratify
the statute and has worked hard in recent months to undermine it. It
has obtained a Security Council resolution exempting its peacekeepers
from prosecution by the ICC; and it has attempted to secure bilateral
agreements with individual countries, promising not to extradite US
citizens to the new court.
The US
Government fears that the ICC brings with it the danger of
politically motivated prosecutions. It complains that the court is
unchecked by an elected body or by the UN Security Council. It
advocates instead accountability through alternative mechanisms: if
domestic processes are not available, the international community can
assist on an ad hoc basis. This can entail either setting up a costly
ad hoc tribunal along the lines of the international tribunals for
the former Yugoslavia and Rwanda (ICTY and ICTR); or the cheaper
alternative of building hybrid courts within a state, with
international and national participants, as in East Timor and Sierra
Leone.
However,
current alternative mechanisms suffer from fundamental
flaws. The ICTR provides a compelling illustration of this.
Established in 1994 in the wake of the Rwandan genocide, the tribunal
suffers from major operational problems. Despite the fact that most
of the main suspected architects of the genocide are in custody,
verdicts have been handed down on only nine defendants, while another
51 detainees are still on or awaiting trial. Yet the ICTR's 2001
report to the Security Council projects 136 new accused by 2005. At
its current rate of completion this would keep the court trying cases
for more than 150 years.
The ICTR
cannot even claim to have demonstrated political
independence. In November 1999 its Court of Appeal ordered the
dismissal of charges against one suspect. The Rwandan Government
immediately suspended co-operation with the tribunal. Three months
later the court reversed its decision. It stated that the first
decision was based on incorrect factual circumstances. This did not
assuage fears that political pressure was the real cause of the
change.
Meanwhile,
halfway across the globe, trials of crimes surrounding
the 1999 referendum on independence in East Timor take place. Here
the UN, unwilling to face a confrontation with Indonesia, placed
reliance on promises that suspects would be tried in Jakarta; and
hybrid courts, composed of national and international judges, were
established by the UN to try suspects in East Timor.
It is becoming
clear that accountability will not result from either
process. Under international pressure, the Indonesian authorities
have reluctantly charged 18 political and military leaders with
failing to prevent the violence, when the conclusion of numerous
bodies, including the Indonesian Human Rights Commission, was that
they had orchestrated it. In a court that is demonstrably partial to
the defence ten of the 13 defendants tried to date have been
acquitted; the three convicted have been given derisorily low
sentences of between three and ten years' imprisonment.
The UN-sponsored
trials in East Timor's capital, Dili, have failed
to bring justice even to the low-ranking suspects within their
jurisdiction. The neglected and underfunded system is blighted by
apathy. Appointments to key positions in the judiciary are left
vacant, and the court process is paralysed as a result.
The experiences
of Rwanda and East Timor show a poor record of what
happens when the international community assists in trials under ad
hoc procedures. The only court that has enjoyed any recent success is
the ICTY, where Serbia's former President Slobodan Milosevic is on
trial. But for many years the ICTY suffered crippling problems in
obtaining the high-ranking suspects that it had indicted. The only
reason that it is now able to try Milosevic is the change in the
political regime in Serbia in 1999 -not something for which the
tribunal can take credit.
The further
overriding problem with ad hoc justice systems is that
they are by nature partial rather than universal. While Rwanda and
the former Yugoslavia have their own dedicated tribunals, East Timor
is left to struggle with limited and ineffective international
assistance. Others lower down still on the scale of political
priorities -Chechnyans, Chileans, Kurds -suffer atrocities without
the hope of any international justice.
Whether
an international criminal court can avoid these problems and
provide an effective, independent and universal process remains to be
seen. However, if it is successful, it will be because it has
independent prosecutors and judges working in a single international
system that is free from political pressure, and accountable to no
political body. It should be able to prosecute the perpetrators of
international crimes, wherever and whoever they may be. In fact the
same factors that the US is unable to stomach are essential to the
court's success. If the US will not support the new ICC in its status
as an independent judicial body, it must also relinquish its claim
that it is seriously committed to accountability for the gravest
international crimes.
The author
is a barrister at 3 Gray's Inn Square. She has
represented defendants in trials at the ICTY, ICTR and in East Timor.
She represents East Timor at the Assembly of States Parties for the
ICC in co-operation with No Peace Without Justice.