Matching Rhetoric with Action: The Challenge of an International Criminal Court
Grant, Stefanie, Criminal Justice Ethics
In January 1998, the United Nations' new High Commissioner for Human Rights, Mary Robinson, described the world's continuing failure to prosecute genocide and crimes against humanity as a "cause of shame." She had just come from Cambodia
where ... I visited the museum Tuol Sleng in Phnom Penh. It had been a school, but became a place of torture and inevitable death for over 16,000 people during the Khmer Rouge period from 1975-79. As I looked at the iron beds with torture implements, saw the graphic photographs of how they were used, and walked past row upon row of photographs of young girls and boys, of old people, of people from every walk of life: civil servants, peasants, intellectuals, soldiers, students; as I saw the piled up clothes and shoes it brought back so vividly my visit to Auschwitz,... and the terrible aftermath of the genocidal killing in Rwanda which I saw ... in 1994. How often have we said `never again'? ... We must match our rhetoric with action.(1)
Just six months earlier, the Cambodian Government had asked for international help in bringing to justice those responsible for the killing of up to a million people. The Cambodians knew that the UN had set up international tribunals for Rwanda and Bosnia. They believed "crimes of this magnitude" in Cambodia were of equal concern to the world because they diminished respect for "the most basic human right," the right to life. Cambodia also needed to establish the truth: only then could this tragedy "be brought to a full and final conclusion." The UN replied that it could not create another country tribunal, and the greater need was for a permanent international criminal court which would be on hand to prosecute future massive human rights abuses as they occurred.
The question today is whether the Cambodians are only the latest in a long line of survivors to be told that although genocide is an international crime, its perpetrators cannot be prosecuted, or whether--at last--the gap between international action and international rhetoric will be bridged.
The signs are good. One hundred and twenty governments, a majority of all UN member states, are now drafting the statute for a permanent and international court, which will be the first ever to have jurisdiction to prosecute genocide, crimes against humanity, and war crimes in any country where the state cannot or will not bring those responsible to justice before its national courts. Optimists, of which there are a growing number, think the court will be created before the year 2000 and that the impunity which has characterized the wars and holocausts of this century can be whittled away by effective international criminal enforcement.
But for the pessimists this still remains a mission impossible, because--they say --neither national governments nor their courts will be willing to surrender sovereignty to allow an international court to investigate in their territory, try their nationals, and compel them to comply with its decisions. They bolster their position by reference to the Yugoslav Tribunal's failure to arrest Ratko Mladic and Radovan Karadzic, Serb leaders in the Bosnian conflict. Last December this issue also moved to center stage in Texas when a District Court refused to approve the surrender of a Rwandan to face trial by the International Criminal Tribunal for Rwanda on charges of genocide, thus demonstrating clearly the first problem which an international court must overcome--obtaining physical custody of its defendants. U.S. courts have no jurisdiction over genocide outside the U.S., unless the defendant is American. This means the Rwandan cannot be tried under U.S. law, and he could go--in effect--scot-free. So the Texas decision also makes clear that even in a democratic country committed to the rule of law, the alternative to international prosecution may be impunity.
The relationship between an International Criminal Court (ICC) and national legal systems and how to ensure the Court gets the cooperation from states on which it depends are two of the hard questions which governments are now negotiating at their drafting sessions in New York. …