By Nayana
A "gift of hope" is what U.N. Secretary-General Kofi Annan called the International Criminal Court which was created by Convention last July.

"Meaningless" was how some non-signatories to the Convention described a body which will not address such contemporary concerns as nuclear weapons, terrorism and international drug-trafficking.

The idea for an international criminal court dates from the end of World War II when the Nuremberg and Tokyo tribunals were set up to try persons accused of war crimes and crimes against humanity. For the first time, it could be said that the international community was attempting to enforce the laws governing the conduct of war and punish those who violated them.

Tribunals
On the other hand, these ex post facto tribunals could be viewed as enforcing "victor's law" by putting on trial only the war leaders of the vanquished countries in a war that had seen the targetting of civilians on an unprecedented scale by both sides. There would, for instance, be no trials for those who dropped atom bombs on Hiroshima and Nagasaki.

The idea of a permanent international criminal court was revived following the recent situations in countries such as the former Yugoslavia and Rwanda / Burundi, where national structures has collapsed to the point where there was no realistic chance of war criminals being brought to justice within the national jurisdictions of the states involved.

With these considerations uppermost in their minds, Western nations favoured limiting the jurisdiction of the court to the so-called "core crimes" of genocide, crimes against humanity, war crimes and aggression. Less developed nations, on the other hand, are said to have wanted other serious crimes which had recently become the subject of international or multilateral treaties such as terrorism and drug-trafficking to be included within the court's jurisdiction.

Likewise, Third World states tended to favour giving the court complementary jurisdiction only, i.e. jurisdiction that would come into force only if the state in which the offender was found refused either to prosecute him or extradite him to another state having jurisdiction over him. The Western nations favoured inherent jurisdiction.

A 1994 draft by the International Law Commission had taken on board these Third World concerns, but the final version, widely acknowledged to have been bull-dozed through the United Nations by a group of "like-minded" (mostly Western) states, largely gave the West what it wanted.

This included confining the court to the "core" crimes (an inaccurate label since even the international consensus on genocide is based on treaty) and giving it inherent jurisdiction. This latter concept includes not only an "automatic consent" regime whereby signature to the treaty establishing the court implies consent to have any dispute placed before it, but also the creation of the office of "independent prosecutor" appointed by the U.N. Security Council.

This prosecutor is empowered to act on complaints by victims as well as NGO's and can call on States who are not parties to the Convention to "cooperate". However, a proposal to refer non-cooperating states to the Security Council was reportedly dropped.

The Court will be totally dependent on the Security Council to enforce its judgments. The Council can also stall the Court by taking cognizance of a matter directly, in which event there will be a twelve month deferral period before the Court's jurisdiction can be enforced. This period of deferral can be extended.

The chief difference between the International Criminal Court and the World Court already established at the Hague, is that while the latter imposes civil liability on states, the former will impose criminal liability on individuals.

The Convention setting up the International Criminal Court has come in for praise from women's groups for including in the definition of war crimes and crimes against humanity, acts of violence against women such as rape and forced pregnancy (used as a method of ethnic reprisal in Bosnia). As with all criminal acts, it will have to be shown that such acts were part of a plan or policy before they can constitute war crimes.

The war crimes jurisdiction of the Court extends to internal conflicts, but the exercise of jurisdiction over "aggression" will have to await a definition of that word by a special committee. Ironically, a proposal by India, Sri Lanka and Turkey to include terrorism as a crime against humanity was rejected due to alleged problems of definition.

Thus the reality of the situation is that international crimes will now be dealt with at three levels. On the one hand, the United States of America has opted not to sign the Convention, ostensibly on the grounds that it does not want to leave its servicemen exposed to trial by a politicized court, but also thereby reserving to itself the right to retaliate to such crimes in its own fashion.

Next there is the Convention establishing the International Criminal Court which requires ratification by 60 states to come into force. This will provide what is in effect a judicial process sanctioned by the Security Council to try war crimes, crimes against humanity and genocide. It no doubt has the power to be effective where the collective will of the Council determines that it should be; but there are fears that its actions will be coloured by the current "unipolar" world ideology that appears to dominate the United Nations.

Terrorism
Finally, the fight against international terrorism continues to be waged through international and regional treaties which have succeeded in removing the "political offences" label from acts such as hostage taking and terrorist bombings, requiring state parties to either prosecute or extradite all offenders.

Sri Lanka was vice-chairman of the ad hoc committee at the United Nations which produced the Convention on Terrorist Bombings which will come into force as soon as it is ratified by 25 states. When the U.N. General Assembly sessions begin later this month, Sri Lanka will also be involved in working on a Russian-sponsored draft Convention on Nuclear Terrorism, dealing with the threat of nuclear material falling into terrorist hands.