OT - ICC in Den Haag starts its work
DIE ZEIT Politics 27/2002
In the name of the peoples
The international criminal court takes up its work, despite resistance of the USA
by Christian Schmidt Haeuer
DEN HAAG
Religions have sworn to it in fear of the punishment of the Lord. Painters imagined it in visionary immortal pictures.Humanists and lawyers dreamed about its secular coming. Next Monday it is so far: the world court. From 1 July on the International Criminal Court (ICC) takes up its work in Den Haag. In a much prosaic fashion, without fire and sword, as Josiah used to prophesy. And also not as a"monster", as a political Cerberus, that has an eye on American citizens, as the Bush government interprets it these days.
What Neue Zürcher Zeitung called a"quantum transition in the international jurisdiction" is more or less nowhere to be seen in Den Haag. The provisional seat of the tribunal is to be opened to the public this week. But for the time being you cannot even talk about a seat. It will take at least a year before the former office building of Dutch telephone company KPN on the edge of the city gets new floors and walls, that should carry and separate prosecutors and defenders, accused and witnesses, offices and media. A house still without any occupants: the 18 judges and their president, the prosecutors and the chancellor of the new world authority will not be selected before the beginning on next year.
A short time ago nobody would expect this: The world court is coming to town - and there's nobody there to meet it. The birth clinics got its birth date simply wrong. After a long laborious trek the international law carried fruit faster, than the boldest optimists expected.In 1998 the UN conference of diplomatic plenipotentiaries in Rome passed the statute of the criminal court. But before the new authority could step into the world, at least 60 states would have to ratify this statute.And to the surprise of all specialists this happened this spring.
The world court will account in euro
Already by 11 April 66 states crossed the finish line. Many of them were motivated by the threat of the Americans to stop the project with all means. Europeans, as well as Canadians and South Koreans, Latin Americans and Africans wanted in a rare agreement and hurry to bring their project to safe waters - away from those, "who drive in the wrong direction down the international law highway", as the Bush government is being labelled in the diplomatic jargon.
Therefore the new Court of Justice for now still looks like a mailbox firm with a couple of caretakers. They are certainly diplomats and lawyers. They are opening bank accounts, writing out contracts for future employees, they sign insurance policies, do inventories, archive and acknowledge first payments - the world court does its accounts in euro. Whoever wants to, can, starting with the 1st July, submit evidence, accusations, complaints to the tribunal. He will receive an acknowledgment of receipt. The work on this material however will not start before chief prosecutors, judges and its first 150 employees will getbehind their desks the coming spring. But the war lords or world powers, the partisans, politicians or presidents, who after 1 July commit or continue crimes against the humanity, who instigate or execute war crimes, genocide or wars of aggression, will feel a little less certain.
That does not mean by any means that this world court could any time soon put the whole world into the dock. First of all the right of the stronger will for some time still prevail over the new authority. And secondly the new tribunal can act only if the country of the accused or of the scene of the crimeis a member of the Court of Justice. Among the present 68 members one can find nearly all democracies. Not or not yet a member are those states, who are by experience ready to further their interests the military way: the USA and Russia, China, India and Israel. But even without them, the middle-size and small states did a large step for the history of law.
They continue, what, one generation ago, an American formulated for the first time. In his opening speech at the international military tribunal in Nuremberg the main prosecutor Robert H. Jackson demanded 1945: "But the ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law. This trial represents mankind's desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world's peace and to commit aggressions against the rights of their neighbours."
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This appeal, which should reach beyond the law of the victorious that was inevitably put to practice in Nuremberg and Tokyo, is met today with total refusal in Washington. The USA, which pushed not only the processes of Nuremberg and Tokyo, but also the tribunals of Den Haag and Arusha against war crimes and genocide in Yugoslavia and Rwanda, imposed a complete quarantine over the ICC. In the same fashion, as it persistently rejectsany agreement, that would impose the same obligations upon the superpower as on any other state, it wants also to keep the international right out of its house. The universal jurisdiction is not to affect the national sovereignty.
On May 6th the Bush government retracted Bill Clintons signature of the Rome statute from New Year's Eve 2000 - an event without parallels in the post-war history. On 6 June the US senate approved for the second time its draft version of the "American Service Members Protection Act". The House of Representatives had already passed its version in May. If the mediation committee does not soften the drafts of the two chambers, the future law will give unbelievable authority to the president. He can let any US citizen, who stands before the criminal court, free by military force.
This draft, which in the meantime America's critics started to call "Den Haag invasion act", caused indignation in the world capital of law. Political parties in the Dutch parliament passed an unanimous motion, which requests the cabinet to set all levers and whole Europe in motion, to prevent this draftfrom becoming a law. Theo Koelé wrote in the newspaper de Volkskrant: "The probability that an invasion will take place, is negligible. But when it is made a law, it becomes a threat - and that's where all the fun stops."
Not just. In the corridors of the parliament at the Plein you can hear members joke: "Great, that after the war we have not destroyed the German bunkers!" The former bulwarks against an allied landing lie high over today’s nudist beaches at Scheveningen, blocked off by barbed wire or wild growth, covered by graffiti as by camouflage nets. There's hardly a newspaper, which has not already painted the scenario, how US-marines storm the beach, the city and the world court.
No Responsibility for Putin and Sharon
Raw times to get born into? Edmond H. Wellenstein, since February the Dutch boss of the task force to set up the ICC, takes it easy: "It is not just our friends in the USA, who will continue to pressure us. As soon as the first accused, from whatever country, stands before the tribunal, the Dutch must get ready for a bilateral collateral damage."
Whatever may go down in flames in Den Haag then, there will not be any longer any protective wall of the United Nations as in the case of the Milosevic process. The Yugoslavia tribunal, just like the Ad-hoc-court in Arusha, is subordinate to the Security Council. The world court however is based, to the annoyance of the permanent Security Council member, the USA, on a voluntary contractual agreement of a group of states of the international community.
Therefore the 52 years old Wellenstein, a multilingual diplomat, whose father ranked among Jean Monnets closest co-workers, sees as his first major task "the management of expectations". That applies both to the interests of signatories, which in the meantime grew to 139 States- 71 however must still ratify it -, and of the broad public. The Yugoslavia tribunal for example, as a preparatory school for the criminal court, received about ten letters every day, which raise complaints and accusations against the entire world - against Putin's war in Chechnya war just as much as against Arafat or Sharon. Even high-ranking lawyers themselves often do not know clearly the realm of den Haag court. Just as its predecessor is limited to former Yugoslavia, the ICC will for the time being not be responsible for Putin or Sharon, because their states have not ratified the Rome statute.
The countries, which already ratified, will meet in September in order to set up the first budget for the ICC - approximately 30 million to finance through the end of 2003. To assist its birth, Holland donated 3.5 euro per every Dutch. Germany already transferred 811.000 euro as a kick-start financing and as a pre-payment for the first budget. Germany, from which Adolf Hitler once flooded the whole world with war, will cover 22 per cent of the ICC costs. Thus it can claim one fifth of all positions. So far 560 prospective employees expressed interest, from top lawyers over administrative workers to watchmen.
Whoever goes to Den Haag, he can expect hard pioneering work and many a bowshot by USA. Its main objection is that it expects that US soldiers and agents, who are participating in peace or other missions in more than hundred countries, could become victims of politically motivated accusations. This is far fetched. Because even given a processable crime on the territory of some member state, the world court can become active only, if the national courts are unable or not ready to pursue the criminal offence.
The attacks of 09/11, which only reaffirmed the old call of the United Nations for an international criminal court for crimes against mankind, alienated Washington only more from the remainder of the civilized world. The USA rejects the world tribunal even more since 09/11. No universal authority should have the power to interfere in its war against the terrorism, whose rules it alone sets - partially under evasion of international agreements -.It even circumvents its own regular jurisdiction, transfers suspects into countries, which permit torture, and wants to move military tribunals outside of the USA. In the past week the Bush government submitted a draft resolution to the Security Council, which would disallow any military and civilian member of UN peace missions to be brought before the ICC. As a support for their initiative the Americans presented to Europeans an embarrassing blooper that happened to British past December in Afghanistan. In the chaos there a British team - without consulting the legal department of the State Department - negotiated in the name of 20 countries an agreement with the provisional government in Kabul that no foreign soldier could be transferred to an international court without agreement of his government. Now the embarrassed 15 European Union states protest unisono that they would never ever extract themselves from their obligations as regards the world court.
All this shows that the international criminal court cannot be a universal remedy against the evils of this world. It will not be allowed to judge and anoint in the name of the human race. If it wants to win respect in the long term, it must record precisely, transparently and with a humility and patience, what "statesmen who have used their powers of state" did "against the rights of their neighbours". "We must avoid anything", say Wolfgang Schomburg, German judge at the Yugoslavia tribunal, "which would make us appear like demi-Gods in red and black."
Much will depend on the first process and speculations over the first to be accused abound. Why, from where and when will he appear? It sounds a little like waiting for Godot.
from ZEIT 27/2002 p 2 |
