THE LAWYERS WEEKLY

June 16, 2000

Permanent International Criminal Court Needed for Lasting Peace: Arbour

BY Cristin Schmitz

Ottawa

As the United States lobbied at the UN this month for its unpopular

proposal to curb the universal jurisdiction of a proposed International

Criminal Court (ICC), one of the court's strongest proponents spoke out in

Ottawa for "effective international criminal jurisdiction."

"Lasting peace requires accountability for war criminals," urged Supreme

Court of Canada Justice Louise Arbour, who was a prominent advocate for the

establishment of a permanent court during her recent tenure as chief

prosecutor of the International Criminal Tribunals for the former

Yugoslavia and for Rwanda.

"A retreat from the promises of the third era of international criminal

justice would be a cynical encouragement to those who, until recently, had

every reason to believe that they were unanswerable for their crimes, as

there existed no authority higher than their own, and would be a betrayal

of those who obey the law and seek its protection,"the judge said as she

accepted an award for her contributions to world peace from the World

Federalists of Canada.

Quoting Whitney Harris, a prosecutor at the Nuremberg war trials, Justice

Arbour predicted "some day there will be an international court of criminal

jurisdiction to deal with the tyrants of tomorrow. We have put tyranny on

trial. It is our duty to keep tyrants under the law."

The judge argued that justice and peace are inextricable. Only enforcement

of the former guarantees stability of the latter. "The link between

criminal law enforcement and the restoration of peace and order which is so

obvious in a domestic environment is still being challenged on the

international scene by many who argue that justice can actually be an

impediment to peace,"she said. "This, I believe, is a misguided view which

simply equates peace with absence of open warfare, and which focuses only

on the short-term, admittedly disturbing, consequences of the exposition of

the truth through a criminal trial."

The judge said the "culture of impunity" must be eradicated in order to

rebuild law and order in countries where people have endured war crimes.

"The [ad hoc] international criminal tribunals, like the Nuremberg tribunal

before them, explicitly rejected the concept that state sovereignty could

provide impunity from prosecution for genocide, war crimes, and crimes

against humanity. These ad hoc tribunals embodied the ideas of universal

jurisdiction and personal criminal responsibility which I believe are

powerful antidotes to the cyclical revenge pattern which maims one

generation in the name of another."

Justice Arbour told The Lawyers Weekly she could not comment on the

specifics of a U.S. proposal, first floated last March, to alter the

proposed court's rules of procedure, which are being finalized at the

fourth session of the preparatory commission for the ICC at UN headquarters

in New York June 12-30.

The U.S. stance has alarmed Canada, a leading backer of the ICC, as well as

many other UN members who avidly support the establishment of an effective

and independent ICC.

The proposal would make it impossible for the court to obtain the surrender

of alleged war criminals who were acting under their government's direction

from countries that have not signed the Rome treaty establishing the court,

unless the non-signatory country consents or the UN Security Council

explicitly authorizes the surrender. The U.S. has not signed the treaty,

and as a permanent member of the Security Council -along with China,

Russia, France and Britain -it would have veto power over any move to give

the ICC jurisdiction over the nationals of a non-signatory country.

The proposed exemption from individual criminal responsibility for

"official acts"could prevent U.S. military members from being surrendered

to the court. The U.S. has resisted the creation of the ICC, citing concern

that its forces could be indicted for such acts as the bombing of Serbia.

Critics of the U.S. proposal say the exemption would also apply to Russians

accused of war crimes in Chechnya, or Chinese accused of human rights

abuses in Tibet. Rogue states such as Iraq, Iran, Libya and North Korea

could also be affected, thus placing many of the worst human rights abuses

and offenders beyond the court's reach.

Limitations on the court's full exercise of its jurisdiction "would

drastically reduce the effectiveness of the court", while undermining the

perception of the court's fairness and credibility, argues the New

York-based NGO Coalition for an ICC which claims more than 1,000

organizations as members.

"In addition to this needless politicization of the court it would also fly

in the face of the well-entrenched legal principle that there is to be

equality before the law,"says coalition convener William Pace in a letter

sent to foreign ministers.