War in the dock

When the international criminal court is ratified, it will tackle torture, genocide and civil disputes.

Lucy Hickman examines how the mechanics of this court will operate in the UK

It is nearly three years since world states gathered in Rome to vote on the establishment of an International Criminal Court (ICC), which would have a brief to try the alleged perpetrators of the 'worst crimes against humanity'.

The votes in favour amounted to 120, with 21 abstentions, while seven countries - including notably the US - voted against.

By the December 2000 deadline, 139 states - including the UK - had become signatories to the Rome Treaty for the Establishment of the ICC and, so far, 32 states have introduced the necessary legislation into domestic law to achieve full ratification.

The Westminster Parliament ratified it just before the general election was called; it now goes to the Scottish Assembly for approval, which is expected in the autumn, after which the ICC will be formally ratified by the UK.Atrocities such as torture, genocide and serious breaches of internationally recognised human rights standards will all be triable by the ICC.

Civil as well as international conflicts are covered by the treaty.

It does not specify the use or possession of nuclear, biological or chemical weapons or land mines as war crimes, but it does include a comprehensive prohibition against the use of 'inherently indiscriminate' weapons.

Sherman Carroll, director of public affairs with The Medical Foundation for the Care of Victims of Torture, says: 'The ICC will act as a deterrent to perpetrators of those crimes most heinous to mankind.

It's about justice, not revenge.

Victims of such atrocious crimes want public acknowledgement that these crimes have taken place and that the individual responsible can be found guilty in a public court.'The new court will operate on the principle of 'complementarity', which requires state parties to convene their own tribunals in the first instance.

The new court would only step in and try cases where a country is unable or unwilling to hold such trials itself.

The inability or unwillingness of a state to uphold humanitarian law will be decided by an independent prosecutor, who must also clear his indictments with a pre-trial chamber, composed of three judges sitting as a panel in The Hague.

The ICC could exercise jurisdiction over a national from a state that has not ratified the ICC statute.

For example, a suspect from such a state who had fled to another country could be handed over to the ICC if the state where the crime occurred had ratified the treaty.

Mel James, secretary to the Law Society's international human rights committee, explains that the idea of an ICC has been around since the 1920s.

'It is only with the dreadful conflicts that have occurred over the last decade - such as in the former Yugoslavia and Rwanda, that people have begun to see that it is intolerable for there not to be remedies for these kinds of problems.' She adds: 'There will no longer be impunity for those responsible for inflicting the worst violations of human rights law on their fellow human beings.

There is a chance of getting some of these people into a court that should act to a very high standard, and does not include the death penalty.' A legal adviser to a non-government organisation (NGO) - who helped frame the NGO Coalition's arguments at the Rome meeting but asks not to be named - says the ICC should act as a catalyst to prompt countries to comply with international humanitarian standards.

The coalition comprises a network of NGOs, international law experts, and civil society groups.Mike Blaxill is a former Crown Prosecution Service lawyer who, for the past six years, has worked as a legal officer at the International Criminal Tribunal for the former state of Yugoslavia (ICTY), which has indicted Slobodan Milosevic, the former president of Serbia, with crimes against humanity and violations of the laws or customs of war.

Mr Blaxill says one of the main benefits of an ICC is that unlike his tribunal and a similar body dealing with Rwandan war criminals, which were both set up on an ad hoc basis to deal with specific conflicts, the ICC will be permanent.'To set up a new institution every time something happens takes time and money, as does getting the people with the right experience to do the job.

The benefit of the ICC is that it will be permanent so it can be deployed immediately when something happens.' He says the ICC will draw its legal basis from existing international law and treaties, human rights treaties, humanitarian standards, the [1945] Nuremberg and the Tokyo Charters, and provisions embodied in the statute creating it.

He adds: 'I think it can learn things from the ICTY.

Some of our people have been involved in the preparatory conferences and I think those setting the ICC up are finding it useful.'With a new body like this there are all sorts of logistical, investigative and legal issues that crop up when you're working cross-border.

We have had over seven years of experience of this.'Lessons can similarly be drawn from the International Criminal Tribunal for Rwanda (ICTR), based in Arusha, Tanzania.

A recent Law Society report on the workings of the tribunal criticised the facilities on offer to defence lawyers, which the tribunal strenuously denied (see [2001] Gazette, 7 June, 6 and 14 June, 6).

Other recommendations included calls for further transparency, improved communications, the establishment of performance criteria, and freedom for the accused to talk to the press.

The Society's working party hopes that the report will influence the rules of procedure that will be drawn up for the ICC.

The NGO legal adviser explains that the ICC will be funded by the United Nations (UN), by UN members and by voluntary contributions from corporations and individuals.Judges will be nominated by ratifying states, probably with consultation with domestic law societies and Bar associations, then delegates from the states will meet and make their selections.

The NGO legal adviser adds: 'The model for the ICC will certainly be influenced by the ICTY and its Rwandan counterpart.

It will be significantly different in some respects because it is permanent and will include civil law aspects and common law ones.

There are bound to be some teething problems but it is astonishing that the people who have been drafting this for the past four years have worked in perfect harmony about the shape of the institution and how it will work.'When 60 states ratify the treaty, the ICC can be brought into being.

This is expected to be accomplished by the end of 2002, if not before, which Ms James says is faster than expected.

'It's very fast in UN terms.

As with many of these things, it needs quite a lot of political will on the part of every UN member to make the decision to ratify.

Then the process of introducing domestic legislation which is needed in between signature and ratification can be lengthy.' Although it is unlikely that British nationals would be tried by the ICC rather than by the UK courts, a problem might arise if an indictee on British territory were a head of state, a sovereign, or entitled to diplomatic immunity.

The UK might then prefer to send the defendant to The Hague.As Mr Carroll says: 'This might happen if you get another Pinochet.

The last thing the UK government wants to do is try a high-profile case in this country.'However, because of the wording of the UK International Criminal Court Act 2001, cases such as that of the Chilean former dictator may not be triable in the UK in any case.The government has come under fire because, as Mr Carroll explains, the Act allows for prosecution only if the acts are committed in the UK, committed overseas by a UK national or committed by a 'UK resident'.

It is this latter phrase which has caused controversy.Mr Carroll says: 'We backed universal jurisdiction so the UK courts would have jurisdiction over ICC crimes whatever nationality the perpetrator.'However, following a debate in the House of Lords, the government accepted that if the alleged perpetrator is resident in the UK, the courts in the UK would have jurisdiction.

'This is not very helpful,' says Mr Carroll.

'The definition of resident differs between tax, asylum and family law, for example, so it is going to lead to a great deal of confusion.

Another problem is that it does not cover visitors who are not residents, like Pinochet.'Ms James adds: 'It could lead to the UK becoming a haven for ICC criminals.' Mr Carroll says another problem with the UK statute is that it does not provide for the establishment of a compensation fund for victims.He says: 'We wanted it mentioned on the face of the Act, but the government says it will support an ICC fund, so there was no need.

However, we felt it was important - in order to tie future governments - that there could and should also be a domestic fund, because if a case is tried in the UK, the international fund would not be used for that.' Both China and the US - two of the five permanent members of the UN security council - opposed the Rome statute, although as the NGO legal officer says, China is currently considering whether it can possibly incorporate the treaty, and the US is unlikely to want to be on the outside for long.Mr Carroll says: 'The US opposed it on the grounds that its military personnel were not exempted.

It makes a nonsense of criminal proceedings if one nation regards itself as exempt.'The US signed but with instructions from [former President Bill] Clinton that it was opposed unless it could get the exemptions it wanted.

It was a cynical move - the US just wanted to make sure it was part of the meetings dealing with procedural matters.' However, Mr Blaxill points out: 'The US is concerned that, since its troops are regularly deployed as peacekeepers, it would be easy for partisan factions to accuse them of war crimes.'It is a concern, if you are going to play international policeman more than anyone else, that you may be accused of ICC crimes.'Critics have also complained that the ICC will also exclude fundamental rights such as the right to trial by jury.Mr Carroll says: 'This is nonsense.

The system is going to be based on a mix of inquisitorial and adversarial procedures found in both civil and common law systems.'The US delegation made sure that the ancient rights and liberties will be fully reflected.'The NGO legal adviser adds: 'The US extradites people on a regular basis to civil law systems without a jury.

If you did a comparison between the rights given by Rome you would find them as strong or stronger than rights under the US constitution or the European Convention on Human Rights.'Lucy Hickman is a freelance journalist