Herald Tribune

Monday, June 15, 1998

A PERMANENT INTERNATIONAL CRIMINAL COURT AT LAST

By Mary ROBINSON

GENEVA - Delegates from virtually every country gather in Rome this

Monday for a five-week diplomatic conference to finalize a treaty establishing

a permanent International Criminal Court. The Court will be the last major international institution established in this century.

For many around the world, these six weeks are an opportunity to close the gap between rhetoric and action on the worst violations of human rights.

An International Criminal Court should bring to justice the perpetrators of the

worst crimes - genocide, war crimes and crimes against humanity. For the last 50 years it has been easier to get away with killing 100,000 people than just one. The gathering in Rome aims to change that and create a world in which there will be no safe haven for the likes of Idi Amin or Pol Pot.

Rome is about recognizing justice as a global value, essential to the wellbeing of our societies. Assessing the facts -d punishing the perpetrators of crimes interrupt criminal activity, serve as a deterrent and address the hurt of the victims.

In too many counties, people know firsthand that without justice there is impunity which fuels cycles of frustration, revenge and endless violence.

The experience with the ad hoc tribunal for the former Yugoslavia has been instructive. After a difficult start, there is the beginning of accountability for the horrors suffered by the victims of ethnic cleansing and the death and rape camps in Bosnia.

There have been convictions and confessions. A number of indicted war criminals have given themselves up for trial, and in Bosnia the net is daily tightening around former Serbian leader Radovan Karadzic. The message of deterrence is becoming plain - you can run but you can't hide.

Closing the gap between rhetoric and action will also mean recognizing that an international criminal court is about something more important than protecting narrow definitions of national interest. Some are nervous about creating a mechanism that will investigate and indict even top leaders. Others worry that their soldiers on peacekeeping missions could be arrested for violation of

international humanitarian law.

I believe that such concerns are misplaced. The proposed court should not supersede or trample the rights of member state to administer their own justice systems. National governments will retain their obligation to bring to justice violators of international humanitarian law. An international court should step in, however, when national authorities are unable, or unwilling to act.

Some fear that diplomatic compromises in Rome will hamstring the new court,

rendering it ineffective. Their cautionary note should be heeded, as there are core principles which, I believe, must be included in the statute establishing the international criminal court.

Beyond that, I would look for a statute that allow for additional jurisdictions and roles to be developed in response to the court's own experiences and the changing world.

The high standards of international criminal law and justice demand that the crimes to be included in the statute for a permanent court should be defined with clarity and precision for the sake of deterrence and the integrity of this new process.

The statute should recognize explicitly the appalling growth in gender related crimes against humanity. There is a crying need for justice and accountability for those responsible for policies of systematic rape, forced impregnation, sexual slavery and other violation of the rights and dignity of women and girl children caught up in internal and international conflicts. For many, this is a key issue and a test of the court' s credibility.

Many of the core principles are self-evident. This will be a court with global jurisdiction, and to ensure global acceptance it needs, to be universal in every sense, to reflect various national criminal law traditions and to draw on the best jurists from all regions to serve as judges and officers of the court.

Its proceedings must conform to the highest standards of international human rights law, with full protection for the rights of the accused and protection for sources and witnesses.

The victims and their needs require special attention, and I will be supporting arguments that the statute should include provisions for reparations, restitution

and compensation of victims.

Another crucial issue is the "trigger mechanism" - deciding what cases the court will consider. Obviously the threshold for triggering a case should not be too low, for example, one based on complaints from individuals, as it could overwhelm the court and make it ineffective.

Equally disabling would be a triggering mechanism that is overly restrictive and dependent on the agreement of concerned states or the UN Security Council.

By establishing the ad hoc tribunals for the former Yugoslavia and Rwanda, the Security Council played a key role in highlighting the urgent need for a permanent international criminal court. However, too great a role for the Council could result in the new Court being seen as dominated by the major powers and thus lacking essential attributes of independence, university and fairness.

For this reason, it is crucial that the Court's prosecutor be guaranteed independence from political interference and full authority to initiate prosecutions on the basis of information from reliable and credible sources. This is not a prescription for unbridled power, like prosecutors in national legal systems. This official's role should be subject to judicial oversight and review.

Inevitably, there will be attempts to compromise on core principles the sake of consensus, and the temptations to be satisfied with what is easily achieved rather than aiming higher.

Perhaps it is useful that this process reaches its climax in the 50th anniversary year of adoption of the Universal Declaration of Human Rights - a document which soars high above the usual standards of diplomatic agreement. It was the work of men and women from all over the world coming together in the shadow of the Holocaust and the atomic mushroom cloud to set out a new vision for the rights of all people.

The Rome gathering of plenipotentiaries, supported by civil society organizations around the globe, will make its own piece of history, enhancing the structure of international institutions built up in the past 50 years. The issues are too important, too fundamental to the security and dignity of people in every region for the opportunity to be diluted or lost.

The writer is United Nation high commissioner for human right. She contributed this comment to the International Herald Tribune.