Peace Magazine Sept-Oct 1998, page 21. Some rights reserved.
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Barbara Bedont and David Matas both participated in the Rome conference that created a permanent court to bring war criminals to justice. Here they describe the diplomatic process that led up to that historic event
In the early morning hours on July 18th, 1998, at the end of five excruciating weeks of negotiations, delegates burst into applause as the vote to adopt the statute for an International Criminal Court passed. David Scheffer, the Head of Delegation of the United States, who had requested the vote and who was one of only seven states voting against the statute, sat stone-faced as delegates cheered and embraced each other all around him.
That dramatic vote came at the end of a long process of negotiations which concluded with the Diplomatic Conference on an International Criminal Court in Rome. Six Preparatory Commission (PrepCom) sessions preceded the Diplomatic Conference to work out the draft statute which was sent to Rome. During those six PrepComs, a dynamic had been established that carried forward into the Diplomatic Conference. For example, a group of states who shared the objective of establishing a strong Court joined forces, calling themselves the "Like Minded." The Like Minded included countries like Canada (the original chair of the group), Australia, most European countries with the significant exception of France, Argentina, Costa Rica and others.
Another pre-determined dynamic of the Diplomatic Conference was the active participation of non-governmental organizations (NGOs). An NGO Coalition for an International Criminal Court was formed early on to coordinate the work of all the NGOs lobbying on the ICC. NGOs became a constant presence at the PrepComs. While delegates initially reacted cautiously to the NGOs, they eventually accepted their participation -- partly through resignation, and partly because they themselves began to rely on the expert analysis offered by NGOs. Many delegates who were not all experts in international law would turn to the papers of NGOs like Amnesty International to find out exactly what was the law on a particular subject. The acceptance of the women's NGO caucus was slower in coming. A Women's Caucus to Gender Justice" formed when it became apparent that women's issues were not being included in the discussions. Women's NGOs from all over the world began working together to push for the inclusion of gender crimes in the statute and special protection measures for victims of sexual violence. If delegates were not all experts in international law, they were even less expert in gender issues. Thus began a long process of sensitizing the mostly male delegates to gender issues. When the Women's Caucus started to use examples such as the biting off of testicles of Bosnian prisoners of war, the delegates suddenly gained an appreciation of the heinousness of the crimes.
By the time of the Rome conference, both the Like Minded and NGO Coalition had expanded. Each group realized it could profit from the other. NGOs turned to their Like Minded friends to find out what was happening behind doors. Conversely, many Like Minded states used the NGOs to pressure other delegations while trying to fend them off from themselves. The Like Minded often accused us of "knocking on open doors" or "preaching to the converted." They would push us off to lobby others.
A new factor arose with the election of the Canadian, Philippe Kirsch, as Chair to the Committee of the Whole. As Chair, Kirsch had the most responsibility for producing a statute. Kirsch's stated objective was to get a statute which the largest number of states could accept. This also became the objective of the Like Minded, including Canada.
The other strategy of the Like Minded was to split the Permanent Five Members (P5) of the U.N. Security Council. Few doubted that the U.S. would not become parties to the statute. After Jesse Helms declared last December that the U.S. would not be a party to any ICC as long as there was a breath of life in him, prompting many unkind jokes, it became apparent that even if the U.S. signed, it would never ratify an ICC statute. The goal then was to get enough other P-5 members so that the ICC could work. The UK had already become Like Minded after the election of Tony Blair. That left France and Russia. Many concessions would be required to get their support. The question to be answered in Rome was how far the Like Minded were prepared to go.
After the third week of the conference, the Chair held a meeting with 30 states from all regions of the world and came out with a "Bureau Paper" on Part 2 of the statute. This part deals with all the major issues of the ICC, such as what crimes the Court will prosecute and when the Court can assume jurisdiction over a case. During the following two days, the Bureau Paper was discussed by all delegations in the Committee of the Whole. Based on those discussions Kirsch put together a second Bureau Paper with fewer options. This again was followed by two long days of mostly repetitive discussions by the delegates.
Then everyone awaited the issue of the last Bureau Paper containing the final proposals with no options. Finally, on the last day of the conference, Kirsch issued the "package" -- a compilation of provisions which the Chair believed would be acceptable to the greatest number of states. It was this package that was put to a vote in the plenary and was adopted by 120 states.
When we received the package on that final day we discovered just how far the Like Minded were prepared to go; they were willing to go as far as France and Russia. For certain issues, the distance wasn't too great, such as the issue of the independence of the Prosecutor. The statute provides for a Prosecutor who can start an investigation of a situation without the need for state or Security Council referral. Although the U.S. remained opposed to this throughout, France had indicated they were prepared to accept this with certain safeguards, which they received.
THE ROLE OF THE SECURITY COUNCIL
The role of the Security Council was also resolved without much pain for the Like Minded. Under the final statute, an investigation can proceed unless the Security Council adopts a specific resolution that an investigation be deferred. France accepted this proposal early on in the conference, thereby easing the way for its acceptance.
Other issues required greater sacrifices by the Like Minded to accommodate France and Russia. Very high thresholds were set for when a crime was considered massive enough to be prosecuted by the Court. Most importantly, the final statute states that before the Court can take any action, one of two states must be a State Party or give its consent, namely; the territorial state and the state of the nationality of the accused. This will make it difficult for the Court to exercise jurisdiction over crimes, especially those committed internally, where the state wishes to protect the perpetrator.
This issue was central to the American opposition to the statute. The U.S. wanted guarantees that no American soldier could be tried before the Court. It therefore proposed that the state of the nationality of the accused must consent or be a state party to the statute before the Court would have jurisdiction. This would assure that no American citizen could be tried unless the U.S. consented. Anything short of this was inadequate for the U.S. However, other countries such as the Like Minded were not willing to go this far because it would erode the principle that the law should apply equally to all persons and would make the Court ineffective. The rejection of the statute by the U.S. was therefore inevitable.
The provision on jurisdiction shows more than any other issue how much the Like Minded were prepared to give up to get a Court. Germany, a Like Minded country, had originally proposed that the Court have "universal" jurisdiction over any crime included in its mandate once the Court was established. A decisive move was Kirsch's decision to leave the German option out of the first Bureau paper. Instead, a narrower proposal by Korea was included, along with the restrictive American proposal and two other proposals by the U.K. During the discussions, 23 states stated they would have preferred the German option, while only four favored the U.S. option. Why; given there was more support for the German proposal than the U.S. proposal, did Kirsch leave out the former and include the latter?
After that, the bargaining shifted and France and Russia were able to benefit from the schism between the U.S. and the Like Minded. The compromise that resulted on the issue of jurisdiction affected all the other issues and circumscribed the power of the Court.
GENDER CRIMES
While these issues were being fought out, an equally fierce battle was going on over the gender issues. The most high profile of these was the fight to have the crime of forced pregnancy recognized under the statute. Motivated by such experiences as the rape and detention of Bosnian women by soldiers to force them to bear Serb babies, the Women's Caucus believed that it was important to explicitly recognize this crime.
A group of pro-life organizations, including R.E.A.L. Women of Canada, attended the conference for the purpose of opposing any inclusion of forced pregnancy in the statute. These pro-lifers tried to argue that recognizing the crime of forced pregnancy would lead to abortion on demand. They found sympathetic ears among a small number of states, including the Holy See, Ireland, and conservative Islamic countries.
The Holy See was their greatest ally. It argued that it was worried that denying a woman access to abortion services would be considered a crime of forced pregnancy. Thus, a definition was proposed to make it clear that forced pregnancy was about the rape and detention of a woman to force her to bear children, and not about denying abortion services. This didn't satisfy the Holy See, however. They wanted to restrict the definition to the Bosnian case. What about the examples of the Jewish women made pregnant by the Nazis to perform experiments on their fetuses? Or what about the kidnapping of pregnant women to sell their babies on the black market? We asked: Wasn't the Holy See interested in ending these types of crimes? Apparently not. Because of their preoccupation with controlling women's reproductive capacities, the Holy See was willing to thwart attempts to have these crimes punished.
The alliance which had formed over the issue of forced pregnancy then expanded its efforts to take out references to "gender" everywhere that it appeared in the statute. The group of pro-life NGOs worked with states such as Syria, Qatar, Saudi Arabia, United Arab Emirates and Iran to oppose all the proposals aimed at promoting justice for victims of sexual and gender violence. I often wondered how these pro-lifers felt collaborating with states with some of the worst records of human rights abuses against women. Although the majority of countries supported the gender provisions, the minority which opposed them had nothing to lose by remaining inflexible. These were the countries that weren't interested in establishing a court in any case. Only after much negotiating led by Canada and Australia were agreements reached on the definitions of gender and forced pregnancy which allowed the gender provisions to remain in the statute.
One regrettable compromise concerned weapons systems. The draft statute going into the Conference contained a list of weapons systems such as poisonous, chemical, and biological weapons, whose use would be considered a war crime punishable by the Court. The question was whether nuclear weapons and landmines would be added to the list. Although a majority of states sympathized with the objective of criminalizing the use of nuclear weapons and landmines, this issue was seen as the treaty breaker. The major military powers were fiercely opposed to any provision which could include either explicitly or implicitly nuclear weapons or landmines. There was little political will among the Like Minded to support a strong provision regarding weapons systems. For example, Canada decided not to push the landmines issue at the ICC conference because it felt it would undermine its efforts overall.
The Arab states were offended that the draft statute included the prohibition of chemical and biological weapons, and not nuclear weapons. Since nuclear weapons could not be added, the resulting compromise did not fall in the middle of the ~ camps. To appease them, chemical and biological weapons were taken out of the last Bureau proposal distributed on the last day of the conference. This was the first time the exclusion of these weapons ever appeared as a possibility By this time, all attempts to modify the Bureau Paper were futile.
CONCLUSION
Despite all the compromises and all the watering down of the provisions, the U.S. was unappeased. In discussions after the first Bureau Paper, it stated that it was strongly opposed to many aspects of the paper, and that if those aspects were not changed, not only would it not support the statute, but "actively op-pose" it. One confirmed rumor was that the U.S. Defense Department had sent a letter to the German government stating that if Germany did not change certain positions, the U.S. would reconsider its defence commitments to Germany.
These tactics did not work. During the last vote, the U.S. was virtually isolated from its traditional allies. Since the vote was unregistered (at the request of the United States) there is dispute regarding which six states voted with the U.S. It is certain that (China and Israel voted against the statute. Other suspects are Libya, Qatar, Iraq, Yemen or India. Three of the P5 - France, U.K. and Russia - voted in favor of the statute, breaking from the U.S. and China.
The NGOs became more observers than participants on the last day of the conference. The Like Minded defended the package against any amendments, good or bad. NGOs could do nothing but watch. I tried to console myself, as I sat around feeling powerless, that our presence remained important. Indeed, during the final unregistered votes, the NGOs ran around the floor trying to record how countries voted. The delegates seemed to feel the eyes of the world watching them.
The fight is not over. Sixty states must ratify before the statute comes into force and the Court can be established. The U.S. has already started a major push to oppose ratification by other countries. In other words, the adoption of the statute is no guarantee that the ICC will be created.
At two o'clock in the morning on July 1 8th, however, the Like Minded were not thinking about this. They were enjoying their moment of triumph. After-wards, in a bar by the Coliseum, a group of Like Minded delegates celebrated the adoption of the statute. I sat amongst them, not knowing how to react to their jubilation. While I was relieved that a statute had been adopted, I couldn't help but mourn the loss of many provisions which would have made the Court stronger. Finally, when some of the delegates started to sing "We are the Champions," I knew the time had come for me to go.
Barbara Bedont is a lawyer working with the International Centre for Human Rights and Democratic Development.
Soft power, the power to persuade rather than coerce, has achieved a new dimension: Nongovernmental organizations and middle powers working together to mobilize public opinion have become as important to international affairs as the coercive power of states. With the land mines treaty, soft power showed what it could achieve. The U.N. system was getting nowhere in banning land mines. To break the stalemate, Canada invited all states to Ottawa to negotiate a treaty The U.S. and Russia came as observers. China did not even show up. Despite the indifference of major powers, but thanks to middle powers, humanitarian organizations, and nongovernmental organizations (NGOs), the land mines treaty happened; it now has 123 signatory countries.
Lloyd Axworthy, the Canadian Minister of Foreign Affairs, in an address to Harvard University on April 25, 1998, said: "Soft power is particularly useful in addressing the many pressing problems that do not pit one state against another, but rather a group of states against some transnational threat to human security. When there is mutual benefit to finding a solution, skills in coalition building become increasingly important. This was the case in the land mines campaign."
The Diplomatic Conference on the International Criminal Court held in Rome from June 15th to July 17th was a different test of soft power. It was not just the Like Minded states and NGOs devising an international criminal court to their liking. It was the whole global community. All 185 states were invited to participate and 160 showed up.
Those countries who did not want an effective international criminal court were full partners in the negotiations. The United States was present with a large delegation, threatening, intimidating, and attempting to coerce. Its positions were so untenable that persuasion of others was out of the question. It favored a prosecutor and court subject to control of the Security Council. That position may have tempted the other members of the Security Council, but it could not entice anyone else.
OBJECTIVES
The proceedings had a goofy air to them. Perpetrators and victims, states interested in justice, and states interested in immunity sat round to negotiate a court. Any search for unanimous agreement was doomed to failure. Every state wanted a court, but they did not want the same sort of court. The Like Minded states and NGOs wanted a functioning international justice system. States that advocated the inclusion of aggression or terrorism in the statute referred to their own tragic experiences as victims of aggression or terrorism. They were incapable of moving beyond that to the need for a functioning international justice system.
The U.S. started from the assumption of a bad faith prosecutor and a good faith state, and tried to devise a court that would restrain the prosecutor and protect the state. However, the court devised in Rome makes sense only if one assumes a good faith prosecutor and a bad faith state. Genocide, war crimes, and crimes against humanity are perpetrated both by armed opposition groups and those in government. It has to be assumed that there will be perpetrators in government who will want to stymie the court. What needed to be built was a court that could function in that situation. Any regime that requires the consent of perpetrators to their own prosecution is doomed to failure. Yet that was what the U.S. was promoting.
The British, French, and Americans had a common interest as permanent members of the Security Council. The more hobbled the Court, the more it would need referrals from the Security Council to be effective.
There remained some states whose primary interest in a court was immunity from a properly functioning court. One might suppose that states interested in immunity would prefer no court at all. However, this was not the case and, from the perpetrator's perspective, for good reason. Perpetrators can hide behind the skirts of an ineffective court, claiming they are not guilty of the crimes of which they are accused, because, if they were, the international criminal court would have convicted them. A weak court is worse than no court at all because it provides an excuse for perpetrators.
There was much to be said against a land mines (Like Minded) process for a world court. A United Nations court would have greater global credibility because it can be financed out of the U.N. budget, whereas a Like Minded court could be financed only by states party to it.. The cost of joining a Like Minded court might be so high as to dissuade some states from joining.
There were also reasons in favor of a land mines process for a world court. U.N. financing means that the purse strings of the court would be controlled by the General Assembly by all states arid not just those that are party to the treaty establishing the court. Hostile parties could shut down the court by not authorizing funding.
A Like Minded court would have advantages beyond its mere existence. In some ways, it would be better than a U.N. court. The Court devised in Rome gives the power to the Security Council to withdraw situations from the purview of the Court. A Like Minded court would have had no such restriction.
The court devised in Rome requires state consent to launch investigation and prosecution. The territorial state and the state of nationality, of the accused both have their fingers on the trigger. A Like Minded court, on the other hand, could have been a universal jurisdiction court. No consent of any state would be necessary to launch investigations and prosecutions.
In Rome, the Like Minded states made a myriad of compromises with non-Like Minded states simply to keep the unfriendly states on board. Some of these compromises could be justified only be-cause they kept the process going toward an overall successful result. The Like Minded on their own could have fashioned a court without those compromises, without having to hold their noses.
VOTING
The Like Minded distinguished between issues that were important and those that were fundamental. The fundamental issues would be left to the end and negotiated as a final package. If it became impossible to negotiate a final package, then, and only then, would there be voting, and only on these remaining fundamental issues. Negotiation and consensus on important but non-fundamental issues might produce a less than optimal text on those issues, from the view of the Like Minded. Though the texts might not be ideal, at least they would form part of a coherent whole. Time and energy could be shifted to other more crucial issues. Thus the Like Minded were reluctant even to threaten to call votes. A threat of vote was seen as antagonistic and confrontational.
Nongovernmental organizations had a different strategy. They were reluctant to shuffle off issues into the important-but-not-fundamental category. There were hundreds of NGOs at Rome and virtually every issue was fundamental to at least one of them.
In order to reach a consensus, the Like Minded accepted a definition of crimes against humanity that requires the crime to involve multiple acts committed in furtherance of a policy. NGOs have taken the position that crimes against humanity should involve either multiple acts or acts in furtherance of a policy, but that there should not be a requirement of both at once.
The Like Minded accepted the defence of superior orders for war crimes in limited circumstances, again in order to reach a consensus. The defence would apply for orders not manifestly unlawful. Some NGOs consider that superior orders should not be a defence in any circumstances.
To the NGOs it seemed that the Like Minded were prepared to shift from principle in order to get consensus. They saw such compromises as a warning sign that the Like Minded might abandon key positions in order to get a consensus. NGOs grumbled that concessions were being made to states that, in some cases, were implicated in serious human rights violations.
NGOs saw the danger of voting, but they also felt that to abandon all talk of voting meant that the Like Minded abandoned their greatest asset, their numbers. The Like Minded consisted of 60 states. The conference eventually agreed that 60 signatories are necessary to bring the statute of the court into force. So the Like Minded have enough members that, on their own, they can bring the statute into force.
To NGOs, the purpose of negotiating should been to achieve buy-in, commitment to the Court. The quid pro quo for compromise offers should have been acceptance of the Court as an institution. The necessary voting majority in Rome was two thirds of those states voting and fifty per cent of those states present. Some NGO advocates of a strong court wanted only those compromises made that would get the necessary two thirds/SO per cent vote, but no more. Additional compromises were unnecessary and should not have been made. Given a choice between general or widespread approval and a stronger court, they would have preferred the stronger court. A stronger court could win the adherence of recalcitrant states later. It would be almost impossible to strengthen later a weak court thrown together in Rome.
While NGOs generally believed that the Like Minded were behaving too timidly by refusing even to talk of voting, nongovernmental organizations were not unanimous about whether or not there should actually be votes. Some saw threats of voting as strategically useful but actual voting as disastrous because it would be uncontrolled. Votes on issues the Like Minded would win might lead to votes on issues that they would lose, such as including in the statute the crimes of aggression or of use, or threat of use, of nuclear weapons. Other NGOs, including the women 5 caucus, actively campaigned for a vote.
THE PARTNERSHIP
Nongovernmental organizations and the Like Minded states, though they shared many views, were not working in true partnership. Their efforts were not coordinated. The Like Minded had no spokespersons on issues at the working groups, did not issue position papers, and did not call for votes. In the early stages of the conference, the very existence of the Like Minded as a bloc was invisible, except behind closed doors.
Canadian delegation members would have taken a dim view of my communicating to NGOs their discussions of strategic planning at Like Minded meetings. They would have viewed it as a breach of confidentiality There is, of course, reason for confidentiality about strategy discussions. A public negotiating strategy may be less effective than a negotiating strategy that is not known to those at the other end of the negotiating table. Be that as it may, NGO absence from Like Minded strategy discussions meant that NGOs had no sense of what the Like Minded were planning. The Like Minded met with NGOs briefly at the beginning of the conference and again at midpoint. There were meetings between NGOs and individual delegations. Philippe Kirsch, the chair of the Committee of the Whole and chair of the Canadian delegation in the absence of the Minister, also met with NGOs. These were exchanges of information, not joint working sessions.
In some ways, NGO access and participation were better in Rome than anywhere else. The plenary, the Committee of the Whole, and working groups were all open and accessible to NGOs. NGOs were able to address the plenary, from the same podium at which governments spoke. There were at least a few government delegates like myself from the NGO world. Many government delegations took the initiative to meet with NGOs in order to set out and justify their government's positions. Despite this overall openness, the full potential of soft power, the coalition of NGOs and middle powers, was not fully exploited. That can only happen when the groups work not just in parallel, but actually together.
CANADA
The position of the Government of Canada in all this was awkward, because Philippe Kirsch, the chair of the Committee of the Whole, is Canadian. The Canadian delegation was tricephalous, combining government and nongovemment people. The third head was the chair.
For any chair to be effective, he/she must be neutral and to be seen to be neutral. A chair seen as partial will lack authority. Canada was anything but neutral on the issues before the conference. Yet the chair of the conference remained the head of the Canadian delegation in the absence of the Minister. That did not mean that Canada could take no position, but Canadian delegates could not take them in such a way that they seemed to emanate from our chair.
Canada chaired the Like Minded until Philippe Kirsch became chair of the Committee of the Whole. It was felt that chairing the Like Minded was incompatible with chairing the Committee of the Whole. Canada went from being a driving force behind the Like Minded to being strategically quiet.
However, Canadian delegation members were hyperactive in lobbying and suggesting alternate texts. Every member of the Canadian delegation would have benefited from a dose of Ritalin. It was at the level of strategy and because Kirsch was chairing the conference - that Canada shifted to a lower gear, viewing the devil as in the details. Get the details right and all else would fall into place.
Regrettably, for at least a few states, there was no connection between acceptance of texts and acceptance of the court. These states were unlikely to vote for the court unless their positions on all major issues were accepted. Their accepting texts along the way did not mean that they had accepted the Court, but only that they were prepared to move on to other objections.
The Canadian delegation had an attitude of optimism that was partly strategic and partly real. It was felt that an optimistic attitude was most likely to lead to a successful result. Prophecies of doom, it was feared, would become self fulfilling. NGOs did not share Canadian optimism. They were worried about the eventual outcome. This attitude also was a blend of reality and strategy. Blithe acceptance of every compromise was hardly going to help nongovernmental organizations achieve their aims. Governments might suppose they could negotiate every-thing away without a peep from NGOs.
Kirsch, as chair, had a strategy: to get the conference to agree by consensus on as many points as possible. He expanded meetings to evenings and weekends and in the final stage floated two versions of a draft compromise package. He did not take positions, lobby governments on issues, appear and speak at Like Minded meetings, suggest ways that the Like Minded could be used to pursue Like Minded goals, work to expand the membership of the Like Minded, or precipitate votes in order to have a Canadian preferred option prevail.
In the end, the conference produced an agreement, a statute, and a court. Of that, Canada as chair could be proud. However, the conference also produced a court that was not of much use to Canada. Canada's problems with war criminals, genocidal killers, and criminals against humanity do not originate on its soil. These criminals flee to Canada as a safe haven. The battle against safe havens was half lost before the Rome conference even began.
The draft statute provided that the court would have jurisdiction only over crimes committed after the court got going. Any fugitives now in Canada are safe from the new Court. However, the draft statute going into Rome left open the possibility of prosecuting those who committed crimes after the court was established and then sought a safe haven in Canada. What happened in Rome foreclosed even that possibility. According to the Rome statute, for the court to exercise jurisdiction, there is a precondition. If a fugitive in Canada is a national of a state that rejects the court, and the fugitive has committed his/her crime on the territory of a state that also rejects the court, then Canada cannot use the court to prosecute the criminal. Until the last minute the text included as an option the consent of the state where the fugitive has fled as a sufficient precondition for the exercise of jurisdiction. When that option was dropped, Canada nonetheless accepted the deal.
THE DEATH PENALTY
NGOs and diplomats work in very different ways. The language of human rights NGOs is clear, specific, and direct. Their manner is to confront power with truth in as public a fashion as possible. Diplomats, on the other hand, avoid confrontation. They operate privately rather than publicly, preferring politeness to bluntness. Diplomats deal with the devil. Even NGOs talk to the devil, but diplomats actually enter into pacts with the devil.
How can two groups with such different styles work together to achieve common goals? The problem was most acute for people like myself, from the NGO world, but part of a government delegation. The death penalty debate illustrates the problems. I represented Canada in the penalties debates and spoke in opposition to the death penalty.
In the working group on penalties, Syria argued for the preservation of the death penalty in the statute, saying that the death penalty was part of the culture of major legal systems of the world, and the statute of the court should reflect those legal cultures. The response I gave for Canada was that the court was a cooperative enterprise of all signatory states. It was not part of the Canadian legal culture to execute offenders and Canada should not be forced to participate in the cultural practices of others as the price of joining the court.
Syria argued that it would be inconsistent for them to agree to a court statute without the death penalty for the most serious crimes, when Syria has the death penalty for less serious crimes. My response for Canada was that we are now at the end of the second millennium. If we require ourselves to make all the legal systems of the world consistent one with the other, our successors will still be discussing in Rome at the end of the third millennium. The presence of the death penalty in the statute would mean that some states would not, and legally could not, cooperate with the court in the transfer of accused. Some states would not join in executions as the price of joining the court. However, the absence of the death penalty would not deter states from joining the court.
The death penalty debate was resolved by a compromise. The president stated that the absence of the death penalty from the statute did not put into question the death penalty in states that joined the court; nor should it be considered as influencing the legality of penalties. Further, a provision was inserted to the text of the statute stating that the statute does not affect the application by states of penalties prescribed in their national law.
To nongovernmental death penalty abolitionist organizations, what happened may have been all that was practically achievable, but it was not ideal. In my role as delegate of a government, I became an instrument for the practical, rather than an advocate for the ideal.
CONCLUSION
The court that came out of Rome has two glaring defects: the opt out provision for war crimes, and the narrow preconditions for exercise of jurisdiction. Either the state of nationality of the accused or the state of territory of the crime has to be a party to the statute or agree to the jurisdiction of the court as a precondition for the court to exercise jurisdiction. When a state joins the court, it can opt out of the court's jurisdiction for war crimes - but for only seven years.
The American position that the court should prosecute anyone but Americans shifted the focus of the negotiations from deterring crimes to protecting soldiers. If the Americans alone had been concerned about protecting their own soldiers, it could have been bypassed. But it was also the concern of the United Kingdom, France, some repressive Arab regimes, and some Latin American governments. All of these countries wanted an opt out regime for war crimes, which they got.
The court that came out of Rome may some day be a warning to potential perpetrators. Right now, it is an ominous warning to potential victims of human rights violations to come. Mona Rishmawi of the International Commission of Jurists said, "The statute is a negative indication of how governments see the future." The governments of the world overwhelmingly endorsed immunity for war crimes for seven years.
Governments lined up behind a safe haven planet, a world where perpetrators would be free from the court once they escaped the place where the crimes were committed, even if the territory of refuge would be happy to cooperate with the court.
Like Minded diplomats left the Rome conference happy. They did not get all they wanted but they could live with the compromises. Many NGOs were less happy. The court that came out of Rome was an institution they could swallow, but it left a bitter taste in their mouths.
At the closing plenary, the Americans, diehards to the end, forced a vote on the draft statute. They found only six supporters amongst the 160 nations present. With a result that lopsided, NGOs wondered whether the compromises had been really necessary. Fewer compromises, it seemed, could have produced a court supported by the requisite two-thirds majority.
In the battle between soft power and hard power, the power of persuasion and the power of coercion, neither won. The Court that resulted is not an alibi court but it is an opting out court, a safe haven court, and a court that offers immunity to those who commit crimes against immigrants and refugees. Both of the major problems in the statute of the court, the possibility of opting out for war crimes and narrow preconditions for exercise of jurisdiction, can be resolved by universal ratification without opting out of war crimes coverage. Universal ratification has to be the next goal of NGOs and the Like Minded.
The court that came out of Rome has two wheels blown out from under it but the engine is still intact. Whether the court will get started and how far it will go depends on ratifying states and NGOs.
David Matas, a Winnipeg lawyer, was a nongovernmental adviser to the Canadian delegation at the Diplomatic Conference on the International Criminal Court.
Peace Magazine Sept-Oct 1998, page 21. Some rights reserved.
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