On Tuesday, Tony Blair's efforts to straddle the divide between Europe and America will become even more strained. With the swearing in of 18 judges, the International Criminal Court will come to life in the face of hostile opposition from the United States (which already has legislation on its books authorising the President to use military force to rescue any soldiers detained in The Hague). Many of Britain's European partners, including Germany, the Netherlands and Belgium, count themselves among the strongest supporters of the new court.
The International Criminal Court is empowered to hear cases concerning war crimes and crimes against humanity, including genocide, the bombing of civilians, and systematic rape and torture. Unlike the Inter- national Criminal Tribunal for the former Yugoslavia, where Slobodan Milosevic is being tried, it is intended to be a permanent institution. Unlike the International Court of Justice, it is designed to deal with criminal cases against individuals, not disputes between states.
The court is mandated to deal with crimes committed after 1 July 2002, provided that either the accused are citizens of a country that has ratified the court's statute, or the alleged crimes were committed on the territory of a ratifying country - regardless of the nationality of the accused. The latter is intensely annoying to the US. With soldiers deployed in more than 140 countries, a view of the laws of war that is somewhat lax when compared to its allies, and anti-Americanism increasing worldwide, the US government worries that its foreign policy and military decision- making could be subject to unwanted judicial scrutiny.
Yet the statute's reliance on nationality and territorial-based jurisdiction is cautious. It was due largely to US pressure during the statute's negotiation that the jurisdiction of the International Criminal Court is not based on the customary international law principle of universal jurisdiction that was central to the Pinochet case. The US argues that, while it has long consented to territorial jurisdiction, that consent is irrelevant because it never contemplated that countries would seek to delegate that sort of jurisdiction to an international court. Other countries find the argument unconvincing, since customary law is by nature often somewhat ambiguous. To date, 89 countries have ratified the statute; another 50 have signed but not yet ratified. Although the ratifying countries include the UK, in the past year only one country has done more to undermine the court.
In June 2002, the US threatened to veto all UN peacekeeping operations unless the Security Council adopted a resolution to override the court's jurisdiction and provide immunity to any citizens of non-ratifying countries engaged in UN authorised operations. The Canadian ambassador complained that the provision of blanket immunity by way of a Security Council resolution would "dramatically alter and undermine" the court's statute. British diplomats were of the same view, but were soon instructed to support the American position. France, the only other permanent member of the council to have ratified the statute, was thus left on its own. In the end, it chose not to oppose the adoption of Resolution 1422. The best that Canada and other opponents of the US request could secure was a limitation of the immunity to a one-year period, when it will lapse unless a further resolution is approved.
The US mounted a parallel effort to secure promises from individual countries never to surrender US soldiers or officials to the International Criminal Court. Countries as diverse and vulnerable as East Timor and Romania were pressured into bilateral treaties. The US argues that these fit within a particular provision of the court's statute that was included to allow …