Why should it be so difficult to establish an International Criminal Court?
Ali Qassim explains.
One night Gerardo Escobar, a lawyer in his forties, whose car breaks down on a highway, is given a lift home by a friendly stranger, a doctor in his fifties called Roberto Miranda. Escobar invites Miranda for a drink and, as it is very late, invites him to spend the night. Escobar's wife, Paulina, also in her forties, pretends to be asleep but is eavesdropping on their late-night conversation.
The next day, to his horror, Escobar wakes up to find his wife pointing a gun at Miranda, who is tied up to a chair. Paulina explains that the night before she recognized in the voice of Miranda the torturer who raped her 15 years earlier. Calmly, she informs her husband: 'We are going to put him on trial.'
This summary from the first act of Death and the Maiden written by Chilean playwright Ariel Dorfmann and filmed recently by Roman Polanski is set in Chile immediately after the 1973-90 Pinochet dictatorship. But it could refer equally to any country in Latin America or elsewhere which is grappling with life in a fragile democracy after years of repressive military rule.
A terrified Escobar tries to reason with his raging wife. 'For 15 years you've done nothing with your life. Isn't it time to...?' Paulina interrupts him: 'To forget? You're asking me to forget!' Gerardo replies: 'To free yourself. That's what I'm asking you to do.'
Death and the Maiden raises many questions about governments' attempts to find both just and feasible ways of dealing with human-rights violations instigated by previous regimes.
Almost 25 years after the military coup in 1973 should a new and fragile
democracy like Chile bring Pinochet and other generals, many of whom are now in their eighties, to trial? Or is it better to close a chapter in history and allow a new generation to move on as Escobar puts it, 'to free (itself)'? Can a country 'free itself' without acknowledging its past, without a national examination of its conscience?
Thousands of kilometres away in France, people were asking themselves the same questions in late 1997 when Maurice Papon, at the age of 87, was finally put on trial on charges of crimes against humanity involving the deportation of 1,560 Jews to Nazi death camps.
Of course, France enjoys 50 years of hindsight and distance as well as a relatively effective judicial system. When Escobar suggests to Paulina that cases of human-rights violations can be taken to the courts, she laughs: 'The courts? Of justice? The same courts which in 17 years of dictatorship never intervened to save just one life?'
She could be referring to the dozens of crippled judicial systems which relatively young democracies are struggling to reform in spite of fierce opposition from the military. Many new governments formidable legal obstacles as they begin to tackle past crimes. In Uruguay, Argentina, Brazil and Paraguay countries which underwent long periods of military rule in the last 20 years the outgoing dictatorships ensured in varying degrees that amnesties were granted through special laws.
By the beginning of the next century there could exist a permanent international criminal court linked to the United Nations. This would act as an effective complement to national jurisdictions when they were unable or unwilling to bring those responsible for grave crimes to justice. This at least is the serious project which certain UN member states, propelled by a broad coalition of more than 1,600 non-governmental organizations, are pushing for with increasing vehemence and under slowly growing media attention.
By June 1998 it is expected that a respectable number of nations will sign a treaty in Rome containing the statute of a permanent court, the culmination of a series of special preparatory committees which have met in the last four years.
While certain differences and details are still being ironed out, it is widely understood that the final draft will contain many of the guidelines proposed by Amnesty International: jurisdiction over genocide, other crimes against humanity committed during war or peace, including murder, extermination, forced disappearance of persons, torture, rape, enforced prostitution, arbitrary deportations, forced transfers of populations and persecution on political, racial and religious grounds.
Other proposals include: the right to conduct trials in places other than the seat of the court; the open selection of at least 18 judges with experience in international law; proper witness-protection programs; and legal aid to ensure that suspects have an opportunity to defend themselves.
The proposed International Criminal Court (ICC) will not be able to take on retroactive cases. 'There is no chance of putting Pinochet on trial,' says Vivianne Castro, a former exile who heads lobbying efforts in Latin America for Earth Action from Santiago, Chile's capital. 'But at least we will ensure that those responsible for crimes can never get away again.'
The ICC will focus on individual criminals: bringing to justice gross perpetrators of crimes against humanity like Saddam Hussein. The impulse to try individual criminals as opposed to nations goes back over 500 years. There were particularly high expectations when ad-hoc courts were created at Nuremberg and Tokyo after the Second World War. But it was only with the end of the Cold War that the idea became truly viable. In 1994 the Inter-national Law Commission decided to transmit a draft statute for a permanent court to the UN General Assembly.
'There is an emerging consensus that international prosecution is appropriate when three factors converge: the crimes are grave, the international community has a deep interest in seeing them prosecuted and national judicial systems are unable or unwilling to bring perpetrators to justice,' writes Stephanie Grant, director of program and policy at the Lawyers Committee for Human Rights, in the publication Tribunal .
The conflict in former Yugoslavia, most notably in Bosnia, was the first situation to be addressed by the UN following these criteria. According to Grant, the subsequent ad-hoc tribunals for the former Yugoslavia and Rwanda are an 'acid test' for UN member states as to whether to go ahead with an International Criminal Court. 'Their success will support those who argue that a permanent court is feasible and timely.'
And yet neither the tribunal in The Hague (ex-Yugoslavia) nor those in Arusha and Kigali (Rwanda) are yielding much, if any, positive news. This plays into the hands of those states including some members of the UN Security Council, who reject the need for an ICC.
The Rwanda tribunal is still reeling from the effects of a UN Inspector-General's Report issued in early 1997 which confirmed misplacement of tribunal funds, gross mismanagement and a lack of commitment to the purpose of the tribunal. Add to this the vastly inadequate funds at their disposal: the number of investigators in the recent paedophile affair in Belgium was more than six times greater than the number of investigators in The Hague.
But beyond these operating difficulties, a closer look at the existing ad-hoc tribunals raises several key questions about the effect of the ICC which will have to be closely examined in the run-up to the Rome
meeting in June 1998.
Take the closely related issues of co-operation and national sovereignty which emerged as problems earlier this year in The Hague with the outbreak of the so-called 'subpoena drama'. In January 1997, The Hague Tribunal demanded that the Republic of Croatia and its defence minister Gojko Susak hand over documents for use in the trial of Croatian General Tihomir Blaskic, who stands accused of war crimes committed in central Bosnia in April 1993.
Croatia's response was one of huge indignation. The argument went that The Hague was establishing a 'dangerous' precedent which would threaten the principles of state sovereignty. Croatia succeeded in getting support from China. It is easy to make the list of other nations currently listed as serious violators of human rights who would not hesitate to use the 'sovereignty' card as a way of impeding any criminal investigation.
'It's that sort of recalcitrant position which would make it very difficult for the ICC to work,' warns Anne Marie Corominas, an attorney at the Lawyers' Committee on Nuclear Policy. 'We must make sure that the Tribunal or Court is not built on a foundation that carries the seed of its own destruction.'
There is another problem: enforcement. Since the summer of 1997, organizations like Human Rights Watch and Amnesty International have launched an 'Arrest Now! campaign aimed at pressing Western leaders to order the arrest of people indicted for war crimes in the former Yugoslavia.
'Everyone knows where Karadzic lives,' says Alan Davies, from the Institute for War and Peace Reporting. But there is a great fear that any attempt to seize Karadzic (read also Pol Pot, Saddam Hussein) is likely to result in bloodshed, perhaps an uprising.
'If the ICC is not prepared for such an eventuality, then it is a waste of time to raise expectations about its creation. If it is only going to serve to get the small guys, then it's nonsensical,' says Davies.
There are other major problems too. Richard Goldstone, Chief Prosecutor in The Hague tribunals in 1996, sees a bleak choice ahead: 'If international justice is to be used as a cheap commodity only to be discarded when Realpolitik so requires then it would be preferable to abandon justice and leave victims to seek revenge in their own way.'
In Death and the Maiden Paulina is bent on seeking her own revenge. At one point, close to the climax of the play, she is counting to ten before she shoots Miranda. Again, her husband tries to dissuade her. Paula retorts: 'This time I'm going to think about myself, about what I need. If only to do justice in one case, just one. What do we lose? What do we lose, by killing just one of them?'
But Paulina doesn't kill Miranda. The last scene of the play shows Escobar and Paula attending a concert. Miranda sits a few seats away. Victim, lawyer and alleged criminal have been forced by circumstances to an unwritten compromise. Justice has been sacrificed. Only a future scenario in which an independent judiciary has the power to conduct a fair trial and enforce justice can alter this ending.
Ali Qassim is a freelance journalist specializing in Spain and Latin America.
An international network of campaigning organizations on the ICC is being coordinated by Earth Action, a citizens' network. Contact:
Earth Action, 15 New Row, London WC1N 4LA, Britain. Tel: (+44) 171 497 5300. Fax: (+44) 171 497 5400. e-mail: firstname.lastname@example.org
Earth Action, Pio Nono 53, Providencia, Santiago, Chile. Tel: (+56) 2 735 7559. Fax: (+56) 2 737 2897. e-mail: email@example.com
Earth Action, 30 Cottage St, Amherst, MA 01002, US. Tel: (+1) 413 549 8118. Fax; (+1) 413 549 0544. e-mail: firstname.lastname@example.org
'If international justice is to be used as a cheap commodity it would be preferable to leave victims to seek revenge in their own way'