A PERMANENT INTERNATIONAL COURT

In an international scenario frequently tarred by crimes of war, the principle of setting up a permanent International Criminal Court to prosecute criminals and protect victims of war is becoming increasingly valid. The tendency is to move towards a culture of peace. But there is no peace without justice. The aim of the seven regional conferences, one of which will be held in Malta within the next two weeks, is to find consensus among all the international communities to establish a "modus operandi" for the permanent court and actually set it up effectively. Ingrid Zerafa interviewed former president of the Transnational Radical Party and non-violent leader Marco Pannella, European Commissioner for Humanitarian Aid Emma Bonino and Sergio Stanzani, president of the No Peace Without Justice organisation.

Q. - Mr Stanzani, what are the arguments in favour of a permanent International Criminal Court?

"The United Nations was founded with the underlying thought of "never again". Ever since, we have witnessed genocide, crimes against humanity and war crimes over again. Since the very beginning of the UN, a court able to prosecute individuals for their criminal responsibilities was envisaged, not only to try the perpetrators of the most atrocious crimes, but also to act as a deterrent in the future. Peace and justice go hand in hand. In situations of conflict and unrest, only proper justice will allow peace to take hold. Obviously, there is no peace without justice.

Q. - The decline of communism brought about an increase in war crimes. Why? What has really happened?

"It is true that the decline of communism established a world order dominated by two superpowers which supposedly shared between them the role of maintaining international law and order. In the 1990s with the collapse of one of the superpowers, the Yalta order came to an end. The destabilisation resulted in an increase of local, regional and internal conflicts generating widespread crimes against humanity and genocide. This does not mean that during the Cold War there were no war crimes, conflicts and genocide. The difference is that the world had to be reorganised and, in this process, the international community assumed major responsibility for the local, regional and international conflicts that emerged.

Q. - Mr. Pannella, what lessons are to be learnt from the Nuremberg and Tokyo trials? Why did it take 50 years to start rethinking, in concrete terms, of a permanent International Criminal Court? Why did the Cold War "stop" decisions for the establishment of a Court from being taken?

"Nuremberg was a landmark in international history. Instead of merely hanging the perpetrators for the atrocities committed, it was decided that they should be given a fair trial. Only those guilty should be convicted, and only those proven guilty beyond reasonable doubt should be punished. This was done in the prospect of fostering a lasting peace. The concept of international criminal justice was established. Notions like crimes against humanity had to be invented to describe the atrocities of the holocaust and thus, international standards of human rights were created.

Then came the Cold War and, for geographical reasons, this juridical body was never established. Progress in the Security Council, particularly was prevented by a constant impasse between the superpowers. The concept of a single system for international justice was not compatible with a world divided by two competing powers claiming supremacy over international law and order.

Q. - What is to be learnt from the ad hoc tribunals of the former Yugoslavia and Rwanda?

"A point of no return was reached. In 1994, in an attempt to help restore peace in former Yugoslavia, the association No Peace Without Justice, the Transnational Radical Party and other non-governmental organisations appealed to the UN for the establishment of an International Criminal Tribunal. Following the end of the Cold War, the concept of international justice was once again possible and all the more needed. With the ad hoc Tribunal of Rwanda, a precedent has now been created. Concepts like genocide and crimes against humanity are now part of the everyday vocabulary and are firmly accepted as part of international law.

These steps in international criminal law cannot be reversed and it is now time to establish a permanent court. The climate has never been more appropriate and if it is not done now, it will never be.

Much has been learned from the experiences of the former Yugoslavia and Rwanda tribunals. Though these tribunals were created to address specific cases and are giving results, the case for a permanent International Criminal Court is strong. First of all, one cannot have 10 tribunals, one for Burundi, one for Congo and so on.

Such duplication would be a waste of resources. And also, these tribunals were created after situations got out of control. The significance of a permanent court is that it would have a deterrent effect. It is obviously not the solution to all problems, but it will definitely prevent such atrocities happening in the future. As can be detected from the present tribunals, which are slowly gaining momentum, it becomes more possible that sooner or later indicted criminals like Karadzic will be brought to justice. There is an understanding that what happened in the past will eventually come out.

So, although these ad hoc tribunals are giving results, there still are some problems. Tribunals created with retrospective jurisdiction have serious drawbacks; they can be perceived as an imposition of the winners over the defeated. There is also another very important point. These tribunals were created by the Security Council. Unless a permanent court is established, we will always be dependent on the will of the Security Council for a tribunal to be established.

Q. - Ms Bonino, what weight will next year's diplomatic conference for the establishment of the International Criminal Court carry?

"The diplomatic conference of plenipotentiaries which will take place in Rome next June will be a historic event. The court will be established only if there is a consensus of all the members of the United Nations on the statute of the court which has been under discussion for the past two years.

Q. - In practical terms, what and who will be punished once the International Criminal Court is set up? Who will be better protected? Will it hinder national jurisdictions? What are its parameters? In which situations will the Court be able to prosecute? Will it impose new responsibilities on the international community?

The court will prosecute individual criminal responsibility for genocide crimes against humanity and war crimes, like conspiracy to commit genocide, etc. There is a fourth "core crime" which may come under the jurisdiction of the Court aggression which is applicable for states and not individuals.

Ethnic groups, religious groups, even women, will be better protected as they fall under the definition of genocide which, in a sense, is the first of the crimes committed. The situations under which the Court will be able to prosecute are currently under discussion. Following the discussion which took place earlier this month by the United Nations Preparatory Committee in New York, there are three types of cases where the prosecutor will be able to investigate, indict and prosecute suspects: if a state complains of any crimes committed; if the Security Council refers a situation (like Bosnia) to the Court; and if the prosecutor, on sufficient grounds, decides to initiate proceedings.

There is a lot of opposition still against the latter from a number of states - but it is crucial. Imagine a case where the Security Council cannot act because an agreement has not been reached. For political reasons, no state will complain and genocide will continue to take place. The victims themselves must not be forgotten.

Q. - The European Commission, promoting democracy and peace, is very supportive to the International Criminal Court. How much power will the European Union have within the Court? Will all countries have equal authority within the Court or will there be leading countries controlling it?

"No country will have power within the International Criminal Court if it is established properly, and that is very much what will be determined between now and the next June. Currently it looks like too much veto power is given to the Security Council and five permanent members (US, France, UK, Russia and China) are really holding onto these powers.

Of course, the Security Council should have its importance within the court to give it support needed in cases like those of former Yugoslavia where forces and peace negotiations are interdependent. However, the court must ultimately be independent to be effective. Politicisation of the court would reduce its credibility and would interfere with justice.

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The meeting No Peace Without Justice organised by the association in collaboration with the University of Malta under the auspices of the Maltese Prime Minister will take place on September 12-13 at the Foundation for International Studies, Valletta.