International Criminal Court new 'monolith' of human rights

Catholic New Times, June 1, 2003 by Kevin Spurgaitis

This past century, some of the worst war criminals in history have flouted fundamental human rights during times of conflict--the tools of torture; rape and genocide firmly in hand. In the absence of a judicial monolith, such scathing abuses have been committed with impunity.

Amidst staunch opposition by some world powers, the world's first permanent war crimes court was finally inaugurated in March with the swearing-in of its first 18 judges. The International Criminal Court (ICC) may not try a case for a few more years, but it is of increasing relevance during these new times--new politics, it is widely believed.

One of its steadfast proponents, Philippe Kirsch, Canada's former ambassador to Sweden, was appointed by other judges as the court's first head. The six-year-presidency is just the latest in Kirsch's 30-year-succession of legal and human rights appointments within Canada's foreign affairs department. The new ICC president has been actively involved in humanitarian law. He has represented Canada in many international legal battles and conferences and has been the country's second-ranking official at the United Nations.

From 1999 to 2002, he chaired the Preparatory Commission for the establishment of the ICC, and the Committee of the Whole of the Rome Conference, which adopted the Statute of the international Criminal Court in 1998. The Rome statute was finally ratified by 87 nations after reportedly taxing negotiations, ending more than 50 years of debate on thes application of humanitarian law.

With the ICC's two-year anniversary fast approaching, Kirsch spoke to CNT about the cause and effect of the new judicial paradigm.

"It's a very exciting appointment. The ICC has been a necessity for a long time, but only recently was it possible to create it. It had to be built almost from scratch. This is a very challenging assignment, but I believe in it," says Kirsch, who is one of the foremost authorities on international law--an author of numerous articles and papers on the subject.

"The statute of the ICC was constructed to be a treaty, something that has been democratically chosen by the international community, not created by a particular organ," says Kirsch. "It is a very new institution, one that is different from anything that has existed before."

The Rome Statute bears a significant Canadian imprint. Canada, he maintains, will benefit as one of the world's leading contributors to peacemaking and humanitarian missions. The court will reportedly be a stabilizing factor in international relations. It will also foster reconciliation in the aftermath of conflicts by "isolating and stigmatizing war criminals."

Based in the Hague, Netherlands, the ICC has jurisdiction to prosecute individuals for the most horrific of crimes: genocide, crimes against humanity and war crimes. When they amount to these crimes, terrorist acts will also be prosecuted by the court. However, the ICC does not have retroactive jurisdiction; crimes committed before July 1, 2002 cannot be tried.

Complementing national courts and furthering victims' rights and gender justice under international law, the ICC is a first in the history of international criminal justice. Victims, here, can participate in all stages of the proceedings before the court. Through counsel, they can submit applications for compensation in the form of restitution, indemnification and rehabilitation. The Victims' Fund, established in September 2002, will support rape victims, child soldiers forced into front line military service and villagers suffering great material loss. Money will be needed to mend their livelihoods during post-war periods.

"This is an asset for regional peace and security. There has been an evolution in the past 5 years that goes beyond international justice. There is reasonable momentum behind the objective of putting an end to the 'traditional culture of impunity,' and replacing it with a culture of accountability," says Kirsch.

Crimes against humanity or genocide have never been codified. Persecution and extermination of peoples, for example, have never been defined in treaties. Instead, they are outlined in the tenents of International Humanitarian Law (IHL), a set of rules limiting the effects of armed conflict, protecting persons who do not participate in hostilities. The IHL is contained in agreements between states, in treaties, conventions and customary rules. Universal codification of humanitarian law began in the 19th century and as the international community swelled, a coalition of like-minded states contributed to the development of these rules. IHL can be found in the four Geneva Conventions, finalized in 1949 and supplemented by the Additional Protocols of 1977, concerning the protection of victims of armed conflicts. Within the ICC, measures will be taken to ensure the respect of IHL, as well as the prevention of violations of the Geneva Conventions and Additional Protocols--war crimes.

Kirsch says: "For decades, there has been a prevailing culture of impunity for the most serious crimes of international concern. There was some hope this would finish after WWII (after the Tokyo and Nuremberg trials). The effort that was made at the time was frozen by the Cold War. And soon after, very serious crimes were committed again."