Rendering the Rome Statute to no effect

There is a definite logic why ongoing moves by the United States of America to enter into agreements with other countries on the non-surrender of each other's citizens, (without the consent of the governments concerned), to the jurisdiction of the International Criminal Court (ICC) are being unequivocally deplored by the international human rights community.

As far as South Asia is concerned, Sri Lanka numbers one of three SAARC countries (India, Pakistan and Nepal) which have thought fit to enter into such agreements with the US. While the position taken by the US is in line with its isolationist - and highly arrogant - reasoning that it is above the law of the community of nations as reinforced through a network of international treaties, these moves serve to further undermine the efficacy of the ICC and indeed, the very basis on which it came to be created. The fact that we have decided to adopt collusive measures with the US in this regard is therefore not cause for praise.

The reasons why this is so are very simple. The ICC was conceived in the context of world wide acknowledgement that individuals who commit certain crimes of "most serious concern" such as genocide, crimes against humanity and war crimes, should be brought within a system of international justice to be dealt with in a manner most appropriate to the nature of the crime. This was a significant climaxing of a process of international accountability for crimes against humanity, first recognised as a need following the Nuremberg and Tokyo trials after World War Two and the genocide perpetrated in the former Yugoslavia and Rwanda. As a respected international human rights monitor, Human Rights Watch, pointed out very succinctly at that time, "the establishment of such a system would revolutionise the defence of human rights by adding a powerful threat of international prosecution and punishment to the existing tools of stigmatisation and economic pressure." Equally validly, judges of the International Criminal Tribunal for the former Yugoslavia argued in February 1995 that, "an international criminal court is urgently required. It is truly the missing link of international law."

The Court, situated at The Hague, in the Netherlands, is conferred jurisdiction through the enabling Rome Statute, over the crimes of genocide, crimes against humanity, war crimes and the crime of aggression. Genocide involves serious crimes committed with intent to destroy in whole or in part, a national, ethnical, racial or religious group while crimes against humanity involve certain serious crimes knowingly committed against civilian populations as part of a widespread or systematic attack and enforced disappearances of persons.

The Rome Statute, crucially in the present context, defines war crimes as grave breaches of the Geneva Conventions of 1949, including willful killing, torture and willfully depriving a prisoner of war or other protected persons of the rights of fair and regular trial.

Other serious violations of the law and customs applicable in international armed conflict, including intentionally directing attacks against civilian populations or objects are also prohibited.

A particular category of prohibitions apply to armed conflicts that take part in the territory of a State where there is protracted armed conflict between governmental authorities and organised armed groups or between such groups. These are exemplified in twelve paragraphs including the conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

What has led to the present signing of non-surrender agreements between the United States and a number of other countries, including Sri Lanka concerns however the manner in which cases would be brought before the Court. The Rome Statute, under its Article 13, provides for the initiation of trials before the Court in broadly three ways. Firstly, where a state party refers such cases, secondly, where the prosecutor of the Court initiates an investigation and thirdly, where the Security Council acts under Chapter VII of the Chapter of the United Nations

The preceding Article 12 specifies that with regard to the first two types of cases, the Court can only exercise jurisdiction if the State in whose territory, the crime was committed or the State of the nationality of the accused is party to the Statute. In the third instance, since the actions of the Council under Chapter VII are of a mandatory nature, the Court could exercise jurisdiction even if both the above conditions regarding the states being party to the statute are not met.

Importantly though, it must be noted that the Rome Statute enshrines the principle of complementarity whereby the Court is obliged to defer to States willing and able to pursue their own investigations. It is only if national courts are unable or unwilling that the Court is mandated to intervene.

Practically however, even though a particular country may refuse to be a party to the Statute, if a national of that country commits a specified and prohibited crime on the territory of (or on board a vessel or an aircraft belonging to) a country which is, in fact, a party to the Statute, that national could be tried before the Court.

Thus, if Sri Lanka signed and ratified the Rome Statute and an American citizen performed such a crime within the jurisdiction of this country, technically, Sri Lanka would have the status to take the case before the Court even though the United States itself is not a party to the Statute.

This, in essence, is the reason why the United States, in the context of the impending war with Iraq and the so called global fight against terrorism, is concerning itself with the signing of non-surrender treaties with other countries in measures effectively intended to take the bite out of Article 12 of the Rome Statute. This is, in fact, in accordance, with the consistent opposition demonstrated by the United States to the conferring of wider jurisdiction on the Court during the processes leading up to the establishment of the Court.

US policymakers argue that the US continues to be the best investigator of human rights abuses committed by its own nationals. However, the phenomenon of Guantanamo Bay where terrorist suspects detailed on the orders of the US military are not being afforded the minimum of civil liberties is one of the many - and striking - examples that belie this position.

The United States have also expressed fears (disregarding specific safeguards built into the Rome Statute to prevent this), that politically motivated prosecutions will be launched against its nationals.

It is no coincidence that all four SAARC countries which have signed the non-surrender agreements with the US have had (or currently continue to have) serious internal conflicts within their borders. And it is a matter of lamentable fact that if the tendency towards signing non-surrender agreements relating to the Rome Statute continues between states, the impact of the International Criminal Court, undoubtedly one of the most vital developments in international war crimes accountability in recent times, will be reduced to mere verbosity and nothing more.

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