Headquarters of the International Criminal Court, The Hague, Netherlands. Photo by Vincent Van Zeijst, Wikimedia Commons.

 

Canada played the lead role in establishing the International Criminal Court in 1998. It was the climax of a 126-year quest for a body to bring to justice those guilty of the world’s war and humanitarian crimes. But control by the UN’s Permanent Security Council has hampered its efforts to prosecute the worst criminals.

 It is Friday evening, July 17, 1998. More than 300 people, crammed into the Red Room of the United Nation’s Food and Agriculture building in Rome, are gripped by anticipation and apprehension. They include delegates representing 148 countries, their advisors and assistants, United Nations officials, and a large phalanx representing some 800 non-governmental organizations (NGOs) from across the globe.

The conference has been underway for almost five weeks. The “plenipotentiaries”—the government delegates with signing authority—joined it two days ago. Now, within the next few hours, they must decide the fate of a proposed International Criminal Court. Its mission is to investigate and prosecute people accused of war crimes, crimes against humanity, or genocide.

In continuous negotiations since the start of the conference, a Preliminary Commission sought agreement on a text that, hopefully, the plenipotentiaries could approve and sign within the final three days of the conference. The Commission worked with the text of a treaty that had evolved during eight preceding years of drafting and negotiating.

The Red Room was crowded in the final meeting to determine the fate of the latest version of this long hashed-over text , after almost a century-and-half of ill-fated proposals for some form of an international criminal court.

An ill-fated history

Gustav Moynier, one of the Red Cross founders, may have been the first to issue a public call for an international court to deal with major atrocities. In 1872 Moynier issued a proposal for a court to prosecute perpetrators of crimes committed during the Franco-Prussian war. In 1919, delegates at the Paris Peace conference proposed a court to try the German Kaiser and others for crimes of the First World War. In 1937, member states of the League of Nations signed a treaty for an international criminal court, but it failed when few nations ratified it.

In 1947, on the heels of the Second World War, the UN General Assembly asked its International Law Commission to draft a court-establishing treaty. Completed in 1953, the proposed treaty dealt with crimes against peace, war crimes, crimes against humanity, and genocide. Caught in the Cold War, this treaty, too, failed to gain ratification. In 1975, Benjamin B. Ferenz, one of the chief U.S. prosecutors of Second World War criminals brought before the Nuremberg trials, issued a call for an international criminal court in his book Defining International Aggression: The Search for World Peace. The book attracted wide interest, but little action.

The text that the Rome conference set out to negotiate, revise and approve was initiated in 1991 when the UN General Assembly asked the International Law Commission to prepare yet another draft treaty. Completed in 1994, this latest ILC text was followed by four more years of negotiations and revisions by two international committees, involving hundreds of diplomats, UN officials, advisors, and NGO members.

Attracted by the UN initiative, some 200 NGOs in 1993 established a Coalition for an International Criminal Court. For three years, this NGO coalition joined governments and UN officials in discussions that sought agreement on revisions to this latest ILC draft. The NGO coalition members acted almost like non-voting members of the committees that did the negotiating. While the coalition worked at the UN level, the NGO organizations worked in their home countries to raise public and political awareness and support. The coalition eventually grew to some 800 NGOs.1 Prominent members included Amnesty International, Human Rights Watch, and the World Federation Movement.

Canada was among those counties that wanted an independent court that would be free from control by the 15-member UN Security Council (with veto powers held by five countries) as well as free from restraint by individual countries. A group of a dozen like-minded countries “under the leadership of Canada and Norway… worked through the three years of negotiations as champions of a strong, independent and effective international court,” two members of the NGO coalition later wrote. “They developed a strong partnership with the NGO coalition and with other experts, and their achievements were impressive.”2 This “Like-Minded Group” eventually expanded to embrace 60 countries. Its meetings were chaired by Canada, mostly by Montreal lawyer Philippe Kirsch, legal advisor to Canada’s UN mission, a diplomat with extensive experience in international criminal law.

Canada also helped fund the NGO coalition, contributed to a UN fund to enable lesser developed countries to participate in the years of negotiations, and sought to increase public awareness and support of the proposed court.

The need for such a court was highlighted in 1994 by the creation of two ad hoc tribunals to try crimes of genocide in Rwanda and war crimes in the former Yugoslavia. For four years, Canadian Judge Louise Arbour was the chief prosecutor for the International Criminal Tribunal for the former Yugoslavia and initially for the Rwanda tribunal. She indicted Yugoslav President Slobodan Milosevic for war crimes, the first serving head of state to be held to account before an international court. (Before his trial ended, Milosevic died while in prison.)

The final hurdle at Rome

Philippe Kirsch chaired the Rome conference commission tasked with the final negotiating work. His large contingent, almost the entire conference, had five weeks to revise and find agreement on this old, long hashed-over text.

Kirsch was described as “Pushy in driving delegations through negotiations… strong, determined, compelling and straightforward… NGO leaders all deeply trusted him.”³

Perhaps so. But “The task awaiting the negotiators was daunting,” Kirsch later wrote.⁴ While a great deal had been accomplished, the lengthy text (more than 20,000 words) was still “riddled with some fourteen hundred… points of disagreement” and “any number of alternative texts. Within the time available, the conference could not possibly have resolved the outstanding issues systematically.”

Outstanding issues included demands to expand the treaty to include crimes of aggression, trafficking in drugs, and terrorism, as well as specifying the use of nuclear weapons and land mines as war crimes. Who would control the court was a major issue.

A plethora of sub-committees and working groups met seven days a week. As time began to run out, the meetings lasted “most of the nights.” Yet after three weeks of intense negotiations, progress toward agreement “had ground to a near standstill… The road to an acceptable text was neither certain nor apparent,” Kirsch wrote in his account of the negotiating process.

Canada’s Foreign Affairs Minister Lloyd Axworthy was one of the keynote speakers when the plenipotentiaries assembled on July 15. By prosecuting those who commit war crimes and genocide, the court “will help to end cycles of impunity and retribution,” Axworthy told the delegates. “Without justice, there is no reconciliation, and without reconciliation, no peace.” The court, he said, should have a “constructive relationship with the United Nations, but must be independent, able to initiate proceedings without having court jurisdiction ‘triggered’ only by a State complaint or a Security Council referral.”⁵

Even as Axworthy spoke, with less than three days left to sign a treaty, there was still “no agreement on… the fundamental questions,” Kirsch’s account noted. The pushing by Kirsch and the lobbying of delegations by UN Secretary General Kofi Annan had failed to achieve a breakthrough. Kirsch was faced with two alternatives. He could report that no agreement had been reached, and suggest yet another effort at yet another, later conference. Or he and his “bureau of co-ordinates” could draft yet one more revised text, “designed to attract the broadest possible support.”⁶

The first alternative seemed to offer little hope for success in the foreseeable future. And no one expected that a revised text would, at this late date, win the agreement of all the delegations. But there was hope that a revised, new text would attract enough delegates to sign the treaty and launch the court. The revised text was prepared with the burning of more midnight oil.

That is why, on the evening of Friday, July 17, those crowded into the Red Room in Rome were gripped by anticipation and apprehension as they considered Kirsch’s new text and the fate of the International Criminal Court.

The first test came on a motion by India seeking amendments. Approval of these, it was argued, would sound the death knell of the treaty. The proposed amendments were defeated by a vote of 114 to 34. When a second set of amendments proposed by the United States was defeated by a similar margin, there was “cheering, hugging, weeping and rhythmetic applause.”⁷ The final test came just minutes before midnight, on another U.S. proposal, to reject the entire treaty. Instead, the treaty was approved by 120 states, with seven opposed and 21 abstaining. Those voting with the United States were Israel, China, Iraq, Yemen, Libya, and Qatar.

At the treaty signing ceremonies on Saturday, Kofi Annan summed up what seemed to be the prevailing attitude of the court’s strongest supporters:

“No doubt many of us would have liked a Court vested with even more far reaching powers, but that should not lead us to minimize the breakthrough you have achieved. The establishment of the court is still a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law. It is an achievement which, only a few years ago, nobody would have thought possible.”⁸

The United States missed an opportunity “to shape the court in America’s image,” Yale University law professor Ruth Wedgwood, wrote in a U.S. perspective of the Rome conference. President Bill Clinton and Foreign Secretary Madeleine Albright had touted the court “as a key aim of American foreign policy,” but on terms considered necessary to U.S. interests. The United States missed its opportunity, Wedgwood wrote, because Washington failed to instruct its negotiators at Rome about the terms it would accept, until after three weeks of negotiations. By then it was too late to effectively argue the U.S case, according to Wedgwood.⁹

The United States was concerned that its troops, stationed across the world, “should not face the added danger of politically motivated prosecutions” because of an international court, Wedgwood argued. But at the same time, “Important changes were made in the draft treaty to reassure the United States.” The result was “hostility that lingers toward the United States, in countries that made hard concession at Rome, only then to see America reject the entire treaty.”

The treaty came into effect in 2002 when the required minimum 60 states had ratified it. It was another year before the court was up and running, with its headquarters in The Hague, Netherlands. Kirsch was among the first 18 elected judges, and served as the court’s first president for more than six years. By 2012, the treaty had been ratified by 119 nations, who were thus the International Criminal Court’s “state parties.” The United States was still not among them.

(From my book, About Canada, Toronto, Civil Sector Press, 2012.)

(Endnotes)

1 Benedetti, Fanny and John L. Washburn. “Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Conference.” Global Governance, v.5, no.1 (January-March, 1999).

2 Ibid.

3 Ibid.

4 Kirsch, Philippe and John T. Holmes. “The Rome Conference on an International Criminal Court: The Negotiating Process.” American ­Journal of International Law. V. 93, no. 1 (January 1999).

5 United Nations, Diplomatic Conerence Begins Four Days of General Statements on Establishment of International Criminal Court. Press Release L/ROM/7, http://www.un.org/icc/pressrel/lrom7.htm. Retrieved 20 November 2011.

6 Kirsch and Holmes.

7 Benedetti and Washburn.

8 Annan, Kofi, Speeches/Statements, United Nations. http://www.un.org/icc/speeches/718sg.htm Retrieved 20 November 2011.

9 Wedgwood, Ruth. “Fiddling in Rome: America and the International Criminal Court.” Foreign Affairs, v.77, no. 6 (November-December 1998).