INDEPTH: WAR CRIMES
The International Criminal Court
CBC News Online | July 9, 2004
PART TWO: CANADA AND THE U.S.
Canada was key in forming a coalition of states that support the ICC. The Like-Minded Group, which Canada chaired, is credited for much of the ICC's progress, including winning its bid for the 1998 conference in Rome.
Philippe Kirsch |
Canada gave money to a UN trust fund to make sure developing countries could take part in the conference. And the person appointed to chair the negotiating committee in Rome was a Canadian – Philippe Kirsch, a senior diplomat, who is now president of the court.
Canadian Louise Arbour was also one of the delegates in Rome who hammered out the ICC agreement. Arbour, who became chief prosecutor for the Yugoslav war crimes tribunal. witnessed the results of massacres and carnage when she brought the tribunal to sites of alleged atrocities – including the city of Pristina, despite the fact that Yugoslav authorities had barred her from Kosovo.
She also issued a warrant for Yugoslav President Slobodan Milosevic – the first international warrant for the arrest of a sitting head of state. (Arbour served as one of the nine justices on the Supreme Court of Canada and is now United Nations High Commissioner for Human Rights)
The United States once played a strong role in bringing war criminals to justice.
Chief prosecutor at the Nuremberg tribunal, U.S. Supreme Court Justice Robert Jackson, told the court, "The crimes which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated."
And the U.S. had its hands in the 1990s tribunals, which have broadened the scope of what constitutes a war crime.
In 1998, the Rwanda tribunal convicted Jean-Paul Akayesu of rape not just as assault, but as a crime against humanity. And more recently, in February 2001, the Yugoslavia tribunal added sexual slavery to the list of crimes.
U.S. Secretary of State Madeleine Albright, who represented the U.S. at the 1998 trial, said the decision to recognize rape as a weapon of war is "a very big step forward."
But when it comes to the ICC, it's been a different story.
Besides being among the seven countries that voted against the Rome Statute, the U.S. put up quite a fight when it came to signing the treaty.
The U.S. eventually did sign in what President Bill Clinton called an act of "moral leadership." But the signature didn't come until the deadline for signatures, Dec. 31, 2000. President Clinton wrote when he signed the treaty: "I will not, and do not recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied."
After Dec. 31, 2000, a country could only ratify the treaty, which means the treaty would be legally binding but the country wouldn't have negotiating power in the court's procedures.
(The U.S. wasn't the only country to make the last-minute decision to sign. About a dozen other countries signed in the week approaching the deadline, including Israel and Iran, which also signed on the last day.)
In total, 139 nations signed the Rome Statute by the Dec. 31 deadline. Countries that didn't sign include China, India and Iraq.
The difficult part was still ahead.
For the ICC to come into force, the Rome Statute needed 60 countries to ratify it. This meant delegates had to bring the treaty home and pass it through their nation's government for it to become law. On July 7, 2000, Canada became the 14th nation to ratify.
On May 6, 2002, President George W. Bush repudiated Clinton's signature.
Critics led by conservative Republicans drafted legislation that not only opposes American involvement in the international court but also aims to punish countries that ratified it. Among those who endorsed the proposed bill was Donald Rumsfeld, Bush's defence secretary. The Armed Services Members Protection Act was passed in 2001.
The problem, according to some American conservatives, is that although the court is designed only to try people if they are not prosecuted at home, the fear in the U.S. is that there's nothing to stop American soldiers abroad from becoming victims of politically motivated prosecutions. Defenders of the ICC claim that this fear is nonsense, since it is a court of last resort and only begins prosecutions if others do not.
Other conservatives, dubbed "new sovereigntists" by scholars, believe that the United States should have nothing to do with any treaty, including the Kyoto Protocol on climate change, that forces the U.S. to obey international rules set by others. These new sovereigntists have had a major influence on the Bush administration.
Unlike Canada, which has been known more for its efforts to keep peace than to make war, the U.S. is probably more likely to become the target of war crimes allegations if an international court existed.
In 1991, the U.S. Commission of Inquiry for the International War Crimes Tribunal released a report on a strip of highway between Kuwait and Iraq where tens of thousands of charred bodies were found. The report claimed the U.S. military had bombed the highway for hours despite the fact that many of the people killed were civilians and the Iraqi soldiers killed were withdrawing from Kuwait, which would violate the 1949 Geneva Convention.
Despite the U.S., the world has gone ahead with the International Criminal Court.
On April 11, 2002, 10 countries ratified the Rome Statute bringing the number of ratifications up to 66, passing the 60 needed for the ICC to become a reality. The Rome Statute came into force on July 1, 2002. The court began operating in March 2003.
By the summer of 2004, 94 countries had ratified the treaty.
The United States, meanwhile, continued its campaign against the ICC. It threatened to use its veto in the UN Security Council to block any peacekeeping missions unless U.S. troops were exempt from the ICC, and at the same time forced other countries to sign bilateral treaties saying they would not take American troops before the court.
In July 2004, the United States tried to renew the Security Council resolution exempting its peacekeeping troops from the jurisdiction of the ICC. But times had changed, the war in Iraq and the scandal at the Abu Ghraib prison hardened attitudes in the Security Council and the U.S. found that it did not have the votes to support the motion, so it was withdrawn.
After that, the State Department said it would decide on a "case by case" basis whether the U.S. would take part in any peacekeeping missions.
At the same time, the International Criminal Court opened its first formal investigation, a probe of crimes committed in the Democratic Republic of the Congo after July 2002, when the Rome Statue became international law.
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