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Topic: The World Court- An unused weapon?
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Trafield
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ABA Journal eReport
http://www.abajournal.com/ereport.html.
AN UNUSED WEAPON
International Criminal Court Could Play Role in War Against Terrorism,
Says New Chief Prosecutor
September 19, 2003
BY JAMES PODGERS
The U.S. government may not be taking advantage of another potential
weapon in the war against terrorism by refusing to cooperate with the
International Criminal Court, says the court's recently appointed chief
prosecutor.
The United States has been a staunch opponent of the ICC since it was
created under an international statute negotiated in 1988 at a
conference in Rome. Both the Bush administration and Congress have
expressed opposition to the court because of concerns that its
jurisdiction might extend to members of the U.S. military.
U.S. officials also maintain that the court will be too independent from
the control of the U.N. Security Council, of which the United States is
a member, and that an independent prosecutor could be empowered to
initiate politically motivated investigations and cases.
But Luis Moreno Ocampo, who took office as the ICC's chief prosecutor in
June, says the refusal of the United States to work with the ICC will
undermine any support the court might be able to give to U.S. efforts to
fight terrorism. Ocampo is an attorney with extensive experience
investigating atrocities and prosecuting public officials in his home
country of Argentina.
"The lack of interaction with us is the mistake, but I think that will
change in the next few years," said Ocampo, speaking with a select group
of reporters during the annual meeting of the International Bar
Association this week in San Francisco.
The ICC's jurisdictional mandate does not specifically cover terrorist
acts. The court is empowered to try individuals, including government
leaders and members of military forces, for genocide, crimes against
humanity and related crimes arising out of armed conflicts. The court
may conduct prosecutions of individuals for those crimes if they
occurred in a country that has ratified the court or were allegedly
carried out by nationals of a ratifying country. The U.N. Security
Council also may refer cases to the court, and the prosecutor may
conduct investigations on the basis of information communicated to him
by states or individuals.
The court only has jurisdiction over incidents that occurred after it
went into official existence in April 2002.
In his press briefing, however, Ocampo offered an interpretation of the
court's jurisdiction that would encompass terrorist acts under some
circumstances. He said a terrorist act like the Sept. 11, 2001, attacks
on the World Trade Center and the Pentagon "is a crime against humanity,
clearly," that could be investigated by his office for possible
prosecution. But he added that such acts also would have to meet the
court's territorial jurisdiction, meaning that his office might not be
able to investigate or prosecute crimes occurring in the United States
because it has not ratified the Rome Statute.
To date, the statute has been ratified by 89 countries, including most
European nations and other U.S. allies.
Ocampo said he has had neither official nor informal contacts with U.S.
officials since taking office, but he expressed hope that U.S.
opposition to the court will ease at some point.
"This court is creating hopes and dreams," Ocampo said, "and in a few
years people will know" how it can play a role in enforcing
international law. ![[Eek!]](eek.gif)
At the same time, Ocampo acknowledged, his office has had what he termed
"communications," both formal and informal, from 66 countries urging his
office to investigate the U.S. conduct in its war against Iraq. He said,
however, that he has not initiated any preliminary investigation into
the war because the primary charge, that it was an act of aggression
against Iraq, is not at this time covered by the court's subject-matter
jurisdiction. (The nations ratifying the ICC treaty, known as the
Assembly of States Parties, have not reached agreement on how to define
aggression.)
Ocampo also noted the court would not have jurisdiction over any U.S.
officials or troops, although some of its allies in the war, including
the United Kingdom, have ratified the ICC treaty.
Ocampo confirmed that his office is conducting a preliminary study into
possible atrocities in the Congo, which has been wracked by civil war.
He plans to submit an initial report to the Assembly of States Parties
before the end of September that could seek authorization to investigate
further. No formal prosecution could be initiated, however, until a
panel of the ICC's 18 judges approves it.
Ocampo acknowledged that his selection of the Congo for an initial
investigation was made partly with an eye to the overall credibility of
the International Criminal Court. "For us, there are cases for which
there might be some doubts," he said, "but the Congo was a clear case."
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