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it wasn’t long after the two air- planes crashed into the World Trade Center that those who care more for justice than revenge started invoking the “International Criminal Court.’ Certainly, you only have to watch the pictures of the U.S. military cowboys meting out cowboy justice in Guantanamo Bay, Cuba, to know that we need a court that can carry out orderly and lawful punishment of alleged al Qaeda conspirators.
Well, now it actually exists. Almost. After half a century’s work, when at countless points it seemed that it would never happen, the court is on the verge of becoming a reality. The convention setting up the court has been ratified by nearly 50 of the required 60 countries, and it’s likely that the remainder will cross the final hurdle in the next couple of months.
Needless to say, there was more than a little self-congratulation last Sunday (January 20) at a conference in Toronto sponsored by the Osgoode Hall Law School and the Friends of the Simon Wiesenthal Center for Holocaust Studies. “It’s lawmaking of historic proportion,” says William Pace, convener of the NGO Coalition for an International Criminal Court. “We’re on the ground floor of experimenting with global forms of justice. After thousands of years of impunity, we’re going to create a system to end impunity.”
Pace, an American, enthuses about Canada’s role in the court’s formation as only someone who’s not a Canadian can. He thinks we should get the Nobel.
Of course, the world is a lot more complicated outside the airy 26th- floor suite at 1 Dundas West where this conference takes place. Getting the court to finally work will mean wading through a minefield of warring agendas. Indeed, many points of view ambivalent about or even hostile to the court are present in this very room.
For example, there’s Alan Baker, legal adviser to the Israeli ministry of foreign affairs. Israel, along with the United States, waited until the December 31, 2000, deadline to sign on, and hasn’t yet decided, he says, if it will ratify the statute setting up the court.
It’s not that Israel is against the idea of an international court, Baker explains. The trouble is, he says, Israel’s enemies are already concocting ways to use it. Baker sees the problem arising in the formulation of “aggression,” one of the four categories of crime (along with genocide, crimes against humanity and war crimes) that will come under the court’s jurisdiction.
An indication of the sensitivities involved is the fact that “aggression,” though it ranks fourth on the list in seriousness, is the only one of the four types of crime that still lacks an official definition. Some ask that it be “a large-scale and unjustified armed attack of great magnitude,” in Baker’s words. Others would define the crime of aggression as lower-order border skirmishes and incursions.
Doubtless, many in the world would say that the latest operations of the Israeli defence forces in the Occupied Territories would constitute crimes of aggression — that’s what Baker fears.
But this conference turns into a bit of a therapy session, and boosters of the soon-to-be court come up with all the reasons why Israel’s and the United States’ greatest fears are exaggerated. Darryl Robinson, a legal officer in the foreign affairs department, assures participants that the court is designed in such a way that a number of hurdles will have to be crossed before there’s a live case. An activist prosecutor, for example, has to convince successive layers of prosecuting authorities before the court proceeds.
But the mere fact that ICC prosecutors will have the power to trigger proceedings is a major victory for NGOs, who feared few cases would be referred to the court if countries became politically paralyzed, as they are wont to do in times of crisis.
However, the price they paid to get national governments to go along with it is what’s called in technocratic language “complementarity,” which means that an individual country has first crack at an investigation in its jurisdiction before the ICC wades in. If the state does not conduct a genuine investigation or merely goes through the motions to protect an accused, then the court can take over.
Without that “first crack” ingredient, not many of the world’s nations would have agreed to the court. It was the deal-maker, everyone here agrees.
One doesn’t have to have to be a respected international lawyer to anticipate the trickery that might be perpetrated in such an arrangement, but it is Canada’s top star in global justice who puts it on the table here. Louise Arbour, now a justice on the Supreme Court of Canada, was chief prosecutor at the International Criminal Tribunals for former Yugoslavia, a special ad hoc court set up because the ICC wasn’t yet running.
“The notion that states should have primacy is a curious one,” she says, “because all states are not equal.” If the state is the alleged offending party, then it has control over information such as military intelligence that authorities are so often loath to give over to investigators. It has management over police services and is unlikely to protect the safety of witnesses.
Under the ICC model, she warns, states can be their own judge and jury. “Those states have the trump card. They can say, “We will investigate.'”
Roy Lee, who teaches at the UN Institute for Training and Research, uses his closing remarks to acknowledge the limitations of complementarity. “But I’m afraid in the present situation that’s the best we can do. That’s as much sovereignty as a state is willing to give up.”
The United States has been cool to the court. Why would a superpower give up the power to punish Osama bin Laden? But it could be the U.S. that will need the ICC more than anyone. What happens, for example, if one of the 9/11 terrorists is apprehended in a European country that refuses to send him to the U.S. because of the possibility of the death penalty being applied? The answer might be, call in the ICC. The world community might even pressure the U.S. to turn over al Qaeda suspects to the court.
Would the Americans ever comply? Maybe not. On the other hand, in the days of mourning after 9/11, there was only one meeting at UN headquarters in New York that wasn’t cancelled. That was the one working out the final details of the International Criminal Court. Maybe the crying logic of the ICC is so clear that no one can deny it, not even the Americans. glennw@nowtoronto.com
