By Lalit Bahadur Basnet
On 25 July, the House of Representatives directed the government to ratify the Rome statute, which created the International Criminal Court (ICC) in 2002. Subsequently, the government has assured about the statute’s ratification. This decision gives the message to the international community that Nepal is sincere to end the heinous crimes like genocide, torture, mass murder, or atrocities against humanity. It will be a milestone in the field of human right protection and no longer could any heinous criminal escape from the trial of justice.
Recently, representatives of NGOs forming the Asian delegation met the Prime Minister and other political leaders and received assurance about the ratification of the Rome treaty. But Maoist leaders hesitated to meet with the delegation, – a possible demonstration that they may not be sincere to end the culture of impunity and atrocities.
The ICC is soon going to start dispensing justice. This court was established on 17 July 1998 in Rome , and was formally launched in Hague, the Netherlands . The Court has rekindled a hope that it would protect and promote human rights. All human rights activists hope the Court would enhance international humanitarian laws. It is the first permanent tribunal having functions of handling heinous crimes like genocide, torture, mass murder, or atrocities against humanity. As no single national court was able or willing to do so, the ICC was designed to deal with crimes by individuals.
After the establishment of this court, it is now accepted that there can be no impunity for the worst violations of human rights. The human right activists even said it were too late to establish such court because the world’s worst tyrants had escaped justice as leaders like Hitler, Stalin and Moa did not face trial. Polpot, responsible for the slaughter of 2 million Cambodians in the 1970s, lived in Cambodia until his death in 1998. Idi Amin , Uganda ‘s brutal dictator, saw out his days in comfortable exile in Saudi Arabia .
Main Provisions of Rome treaty –
The statute of ICC Article 5 says the jurisdiction of the court shall be concern to the international community as a while, which are: the crime of genocide, crimes against humanity, war crimes and, the crime of aggression. Even if any state is not a party to the ICC, its citizens could still be prosecuted if they commit any of the listed crimes in the territory of the signatory states. Some argued that these statute provisions are against the Vienna Convention on the Law of Treaties, which says that the states that do not accept a treaty are not bound by its provisions. But others claim that if the provisions are not enforced it would mean legitimizing the law of the jungle. The court has jurisdiction over the individuals who commit any of the statutes core crimes and are not prosecuted by their own states. Under its provisions, it cannot bring about a prosecution unless the accused country of origin is “genuinely unable or unwilling” to do so. In this sense, the ICC represents a genuine step forward. The statute of ICC has no retrospective effects.
Can form war crime tribunal in the absence of Rome Treaty
In 1993, the UN’S international Criminal Tribunal for ex- Yugoslavia where Slobodan Milosovic was tried in the Hague became the first international war crime tribunal to be set up since the Nuremberg and Tokyo trials after the second world war. It was followed a year later by the UN Tribunal for Rwanda . Like their post war forbearers, the two courts operated exclusively under international law. Since then, five other war crimes tribunals have been set up to deal with atrocities in Sierra Leone , Cambodia , East Timor, Iraq and Afghanistan . Recently Lebanon has asked the UN for help in setting up a” tribunal of international charter ” to try the assassins of Rafik Hariri, the former Lebanese prime minister who was killed. A year ago, in Sierra Leone a special tribunal was set up after 11-years bloodbath and barbarism in which about 200,000–500,000 people were killed and three- quarter of the country’s 6 million inhabitants were forced to flee their homes. This barbarism had raised question; should such crimes be forgotten and forgiven. The special tribunal was set up in 2002, which is operated jointly by the UN and Sierra Leonean government under international law in 2002. This was called the world’s first hybrid court. It was the first modern war crime tribunal, which is based in the country where the crimes were committed.
Why the USA opposed Rome Treaty?
The formation of the ICC was an uphill task, especially because big and powerful countries like the USA , China , Iraq , and others like Libya Qatar, and Yemen voted against the formation of this court. The USA has not only refused to ratify the treaty, but it has opposed it vehemently. The US Congress has denied funding and cooperation to the ICC. America has campaigned against the court for the fear that it will be used to mount politically motivated prosecution of American government officials. But the supporters of ICC insist that there are enough checks and balances in the 1998 treaty to ensure that it operates responsibly. The USA claims immunity from the ICC jurisdiction. The superpower also rejects the Court’s jurisdiction that allows it to prosecute the citizens of non-signatory countries. The Clinton administration was involved in shaping the court’s treaty. Former president Clinton had even signed the treaty just before the end of his term. However, president George Bush revoked the decision. He was seeking absolute legal immunity for the Americans from the ICC jurisdiction. Last year George Bush signed extra territorial legislation, which permits the US ”to use all means necessary and appropriate to bring about the release ” of US citizens being tried in the court. Even British Foreign Secretary Jack Straw had warned America against attacking the ICC. The USA insists that it did not want a court that could prosecute its military personnel. After the statute was finalized, the US State Department spokesman James Rubin came up with a self-serving stand ”Countries did not recognize that because of our responsibilities with troops around the world, we thought there needed to be unique provisions to prevent prosecution based on some political desire. It would be unfair to prosecute American soldiers who are conducting the policies of the president. That is the burden of being the United States .” The extra territorial legislation was also signed between Nepal and USA government on 31 December 2002 .
Criticism of ICC
The statute has not prohibited the use of nuclear, biological and chemical weapons, which are of genocidal nature. Mexico and Arab states strongly protested when these weapons were deleted from the draft of the statute. The big powers contend that only the Security Council has the right to determine whether an act of aggression has taken place, relying on a narrow reading of Article 39 of the UN charter. The Red Cross, and various INGOs have criticized the Rome statute for making it difficult to prosecute crimes committed in domestic civil wars. It can invite external intervention in the internal conflicts. The treaty had inherent jurisdiction over crimes committed on a territory of a non-state party, it would be an infringement of national sovereignty. This may be unpalatable but under the present circumstances of a discriminatory world order, it is unavoidable. Critics complain that they are selective and deliver only partial justice. Such kinds of tribunal and court failed to prevent the massacres in Srebrenica and Kosovo. Despite establishment of tribunal in Nuremberg , the genocide has continued. Likewise the indictment of Mr. Kony and his henchmen has not stopped the Uganda killings and since the referral of Darfur to the ICC the violence there has got even worse.
Although these weaknesses deprive the ICC of a certain degree of legitimacy, they don’t entirely rob the court of usefulness. Formation of ICC has enhanced greater respect for international humanitarian law. So all the states involved should take the ICC seriously and work towards making it robust and genuinely impartial. A decade of experience at the Yugoslavia and Rwanda tribunals has taught lessons of lengthy and costly trial proceedings, which have been broadly criticized. The ICC’s proceedings, they hope, will be more efficient and follow the due process of law. The ICC is expected to focus mainly on the world’s worst atrocities, rather than on the small fry.
Who are going to be on trial?
Serbia ‘s former president, Slobodan Milosevic – who recently died – was under trial by the ICC in the crimes against humanity. The ex- Serbian president’s ex-Army Generals are on the trial in the ICC. The Bosnian Serb Army Chief Ratko Mladic for Srebrenica massacre, Thomas Lubanga Dyila of Congo (where conflict has claimed 4 million lives since 1998), and ex-president of Liberia Charles Taylor (a notorious warlord) – are some of the people who have already been arrested or are going to be arrested in future. In Chile , Augusto Pinochet is going to face a real possibility of trial – 17 years after the end of his dictatorship and Hissene Habre, a ruthless ex-president of Chad , exiled in Senegal for the past 16 years, could soon be extradited to Brussels to face trial against humanity. And Saddam Hussein , Iraq ‘s former dictator has been facing trial before a special tribunal in Baghdad . The court has also been mandated by the Security Council to investigate the current horrors in Darfur, in western Sudan , which is a non-member of ICC. The ICC continues to keep watch on developments in five other violence-racked countries, including Cote d’lvoire and the Central African Republic . Taylor ‘s capture has send a very strong signal to other potential tyrants. These activities show that there can be no impunity for the worst violations of human rights not even for heads of state and long after they go out of power.
Why Nepal should ratify the Rome Treaty?
The main purpose of ICC is to try the world’s worst criminals who have committed crimes against humanity, and to end impunity for the perpetrators of the international community. Apart from Rwanda and Yugoslavia cases, many heinous crimes against innocent people remain unchecked and unpunished. The ICC is hampered by the refusal of many of the worlds worst human right violators like Zimbabwe, Cuba, Uzbekistan, North Korea, Syria, Belarus and Saudi Arabia to sign up to it.
Nepal has ratified all kinds of treaties related to Human Rights and is committed to the protection of international humanitarian laws. With such respect and commitment of Nepal in the field of Human Rights, why is there hesitation and delay in the signing and ratification of the Rome treaty? By being a party of the Rome Treaty, Nepal does not lose her sovereignty nor does the treaty usurp local jurisdiction. The ICC is only complementary and local courts can function independently. For the last few years, Nepal has been facing various crimes against humanity. Both the revolutionary forces and the government have committed heinous crimes. In the name of people’s war, many innocent civilians are being killed brutally. Such kinds of crimes should be punished. If the national court is unable and unwilling to punish such criminals, the ICC will take jurisdiction over them and no one will be able to enjoy impunity anywhere in the world. The extra territorial legislation signed between Nepal and the US government on 31 December 2002 has created some difficulties to sign Rome Treaty. Our neighboring countries India and China have not signed this treaty. That’s why Nepal seems to be a bit hesitant to ratify Rome Treaty.
(The author is a constitutional lawyer. He can be reached at [email protected] )
Courtesy : Spotlight
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