Analysis: New Court Dogged by Uncertainty

Tuesday, 22 February, 2005

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Chris Stephen

The International Criminal Court, ICC, once it overcomes a number of significant problems, is likely to bring its first war crimes prosecution against one or more of the factions fighting in Ivory Coast.

France is reportedly considering asking the United Nations to authorise the ICC - which is this week electing its initial judges - to start work on the Ivory Coast, now in the grip of a civil war.

The move would be an unusual one because it would need the support of the Security Council’s permanent members who include the United States, a leading opponent of the ICC - the UN body would in fact need to ask the new court to take the case.

But diplomats say the French are hoping the US would agree not to block such a proposal in the Security Council, in line with its own expressed policy of supporting ad hoc war crimes courts, such as those for Rwanda and Yugoslavia.

Among the 72 members of the ICC, four are getting attention: Afghanistan, Columbia, Democratic Republic of the Congo and Venezuela.

Afghanistan’s warlords are notorious for committing the whole gamut of war crimes - but they are likely be spared prosecution because the nation has only just joined the court, meaning that crimes committed before this date will not be counted.

Also ruled out are atrocities during the 2001 war, including the alleged slaughter of hundreds of Taleban prisoners by forces in Northern Alliance-controlled territory.

UN investigators have unearthed hundreds of bodies near Mazar-i-Sharif, and have also pointed to killings during a prisoner rebellion in December 2001 but these crimes cannot be considered by the ICC either.

Officials, nonetheless, will be studying the upsurge of fighting in the country.

And this could lead to the US finding itself in the gunsights of a future prosecutor. Although Washington has not signatory to the ICC, court rules mean that anyone, member or not, can be charged with war crimes if they committed on the territory of a member nation.

This could potentially cover operations now going on in the south of the country, as clashes erupt between Taleban forces on the one side and government forces and US paratroopers on the other.

More intriguing is whether the prosecutor can frame charges concerning the Afghans being held by the US in Guantanamo Bay - human rights lawyers say Washington is holding them illegally because the prisoners have been refused access to lawyers.

Columbia is another member where conflict is raging, and prosecutions could follow, particularly against the FARC guerrillas and other paramilitary groups.

In Congo, a total of six neighbouring countries have had troops in the country in recent years, with the UN and other human rights groups documenting a string of atrocities.

This could see prosecutions against not just these units, but also the ministers and government leaders responsible for sending them to the Congo.

Finally, there is Venezuela: no war has broken out, but tension is high between strikers and the government.

If there’s bloodshed, the army, in particular, will come under close scrutiny. Many nations, such as Venezuela, joined the ICC in part to ensure that in the event of a military coup the generals do not escape justice.

Officials in New York say there are some “wild cards” such as Great Britain, which could be in trouble over any war in Iraq. Iraq is not a member of the ICC, but Britain is, making it liable to any prosecutions.

All of this could be a long way off, however.

For one thing, the powers of the ICC are untried: no one knows how war crimes prosecutions will pan out.

The court will obviously look at direct war crimes, such as the shooting of demonstrators, slaughter of prisoners or ethnic cleansing.

Powers under the court’s statute could also extend to prosecutions against those who support the warlords, even presidents of nations not directly involved in the wars themselves.

One worry for Washington is that the powers of the court lead in a dozen directions: would, for instance, military aid to an army in the developing world which subsequently commits war crimes see indictments land in the White House? What about funding for groups who stage a coup?

Also, the ICC cannot launch a war crimes case until the country concerned has had a chance to do so itself. This principle, named Complimentarity, means that any war crimes case must first be dealt with by the domestic judiciary.

Only if the ICC decides - via a panel of three judges - that a local court has failed to prosecute for war crimes can the ICC itself take up the case.

And a more practical set of problems mean none of this is likely to happen soon.

For one thing, the ICC can’t find a prosecutor. Astonishing, but true - while 45 candidates have been standing for the 18 judge vacancies, not a single person put their name forward for the post of prosecutor, despite the deadline being extended late last year.

So, unless there is some new development this week’s States Conference being held at the UN headquarters, there will be no prosecutions, probably for many months to come.

However, possible prosecutions continue to come in: allegations of war crimes violations continue to arrive at the ICC’s HQ in The Hague, a building a few blocks away from the war crimes tribunal. Some come in the mail, and officials say most are likely to be spurious.

But among the hundreds now being kept in a safe in The Hague are expected to be several that may form the basis for the first court prosecutions.

Finally, while the ICC has wide-ranging and untested powers, it has a tiny budget, now standing at 30 million US dollars - less than at third of that available for the tribunal.

This is likely to mean that, when, eventually, the court finally gets someone willing to be prosecutor, he or she will have a difficult job finding the cash for any comprehensive investigation.

Chris Stephen is IWPR Hague Bureau Chief.