Herald Tribune

Monday, June 15, 1998

The First Priority Should Be a Strong Court

By Louise Arbour

THE HAGUE - There are high expectations that the Rome conference will produce the first permanent International Criminal Court, empowered to prosecute and convict persons responsible for unspeakable crimes. This is such a noble ideal that no one dares oppose it, at least in principle.

This ideal embraces the notion that powerful leaders, who may be in a position to shelter themselves from their domestic criminal justice systems, should be answerable to the whole world when their crimes are an affront to humanity as a whole.

What sort of Court emerges from Rome remains to be seen. Ideally it should have two fundamental features.

First, it should be universal, with the acceptance of, and jurisdiction over, as

many states as possible. Second, it should be independent and strong.

Universal jurisdiction is important in principle because the crimes are being

prosecuted on behalf of humanity as a whole. In practice, universality is also critical because suspects, witnesses and other evidence are likely to be scattered all over the world.

The second of these features, independence and strength, goes to the Court's legitimacy. The prosecutor should have the power to initiate prosecutions, unhindered by political interference, and the Court should be able to issue binding orders and decisions, even to states. As in the case of any national criminal court, such powers are crucial to maintaining public confidence in the judicial process.

It is very unlikely that the Rome conference will produce a strong, independent Court with broad-base support. In fact, many would be happy with a result that has these two fundamental features applied in inverse proportion: They will support a strong Court if its reach is very limited (and not applicable to them), or they will support a Court with a broad application, including to them, but very limited powers.

Between these two models, unfortunately, there is real danger that the latter will prevail.

Universality cannot, of course, be imposed by treaty. In order for the ideal of universality, or close to it, to be achieved, the treaty must attract as many ratification as possible. And the best way to attract the support of reluctant states is to reassure them that their exposure, under the treaty, will be minimum. That is to say, that they win never have to yield to the Court's jurisdiction, or be made to obey its orders, in any given situation, if they choose not to.

The reason this model is likely to be the most attractive is self-evident. Everyone is "safe," and it looks good because nearly everyone agrees.

In this scenario, the Rome conference, which is supposed to produce a great judicial institution representing triumph of the rule of law over the rule of force, will have simply revealed the true extent of the impunity of the powerful.

But this must not necessarily be so. Real progress can be made by recognizing that Rome will be only a step in a process, not the final goal, and by ensuring that the process keeps moving in the right direction.

The first step should be a strong Court. The final goal should be the universal acceptance of that Court.

This is so for two reasons. First and foremost, a weak Court will have no credibility. There will be great risk of an innocent being convicted through inevitable judicial error, of the guilty being acquitted through the Court's inability to secure evidence, and of trials being subject to political manipulation or the appearance thereof. A weak Court will never succeed in building the legitimacy without which no court can function.

The second reason why a weak, even if broadly accepted, Court would be the wrong choice for Rome relates to the Security Council. Referrals from the Security Council are likely to be important, if not actually the only source of work for the Court, for many years to come. It would be a major step backward if the Security Council were to refer cases similar to the ones that have arisen from the former Yugoslavia and Rwanda to an institution less well equipped than the two ad hoc tribunals.

And it would be wasteful, if nothing else, if the Security Council were to continue the practice of setting up ad hoc tribunals in parallel to a weak and impotent International Criminal Court.

This is the reality within which the Rome conference will be expected to produce a treaty for the effective prosecution of criminals who jeopardize the lives and security of entire populations.

In light of that reality, the best possible outcome of the Rome conference would be the creation of a strong Court that will look and work like a criminal court, even if it attracts only the minimum of support necessary to put the institution in place.

If much of its work is likely to come from the Security Council, once the treaty is in force the number of ratifications will not matter since all states will be bound by the Security Council's resolutions referring jurisdiction to it.

If, in doing its work, the Court succeeds in building its legitimacy, as I believe the two ad hoc tribunals have done, the treaty establishing the Court can be expected to attract more ratifications over time.

But if the outcome at Rome is widebase support for a weak Court, a Court from which state will be able to shelter the cases most deserving of international condemnation, it is difficult to imagine what corrective measure could be taken i. the future to breathe life into a stillborn institution.

The writer is chief prosecutor at the International Criminal Tribunals for the former Yugoslavia and former Rwanda. She contributed this comment to the International Herald Tribune.