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International Criminal Court Imminent

By Carl Nyberg

When the 60th country ratifies the International Criminal Court (ICC) Treaty, the world will have a permanent institution to try perpetrators of genocide, major war crimes and crimes against humanity when nations with jurisdiction either cannot or will not prosecute these crimes. The 60th ratification is expected to occur between April and June of 2002. Unlike past tribunals such as Nuremberg, Tokyo, Yugoslavia and Rwanda, the ICC will have potentially global jurisdiction.

What would the ICC mean to the Vietnam War and the larger Southeast Asia conflict? Would former U.S. senator Bob Kerrey have been eligible for prosecution? What would the ICC mean for Cambodia and the Khmer Rouge genocide?

To prosecute a war crime before the ICC, the prosecutor must show that the crime was committed as part of a plan or policy, or was otherwise widespread. This not only protects soldiers who are implementing policy from being scapegoats, but also pressures the prosecutors to move up the chain of command to the people with the power to make policy. To prosecute Kerrey the prosecutor would have to prove that any war crimes committed by Kerrey were part of a plan or policy.

Recently the United Nations scrapped a plan to create a tribunal to hold Khmer Rouge leaders accountable. Because the Khmer Rouge deliberately targeted lawyers and other intellectuals, the Cambodian judiciary remains in shambles. The United Nations offered to support the Cambodian judiciary, but the parties could never agree on the specifics. If the ICC had jurisdiction over the crimes - and it won't have jurisdiction for crimes committed before the Court is created - there would be no debating the details of creating the Court. The Court would already exist. Since Hun Sen, Cambodia's leader, was a member of the Khmer Rouge and the United States and China supported the Khmer Rouge in conflicts with Vietnam, one could infer Hun Sen, China and the United States all had reason to want the United Nations to fail in negotiating a tribunal for the Cambodian genocide.

President Clinton signed the ICC Treaty on the last day a country could sign the treaty without ratifying it. Clinton recommended that President Bush not submit the ICC Treaty for ratification by the U.S. Senate. He described the treaty as "flawed." The technical issues identified by the United States had been addressed by the time of Clinton's statement. The only remaining "flaw" was that the United States couldn't exempt itself from the jurisdiction of the Court. What good would a court be to prosecute genocide if a government could exempt itself from prosecution? Why should the United States be able to exempt itself from scrutiny by the Court if other countries can't exempt themselves?

A coalition of global justice organizations, including Amnesty International, Human Rights Watch, the Feminist Majority, United Nations Association, the Methodist Church, and Campaign for United Nations Reform, has created an advocacy website <www.USAforICC.org> to allow American ICC supporters to contact Congress, other public officials and media outlets in support of the ICC. You are invited to use it to get more information about the Court and to contact your members of Congress.