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think twice

to insist on consensus means that years of endless, time-consuming and expensive negotiations may result in nothing or in treaties that are very weak

there had been a remarkably high level of co-operation between friendly governments and private citizen’s groups

the US, India and others were not going to support the compromises reached in informal negotiations and were using their considerable influence to build opposition to the emerging consensus.

Ben Ferencz, a diminutive, bespectacled elderly man, approaches the podium before an assemblage of 150 governments from around the world. He speaks not in the legalistic and flat tones characteristic of the government representatives that spoke before him, though he is a lawyer and a former representative of his government, the United States. Instead, Mr. Ferencz’s voice is filled with emotion and passion, beginning his address, ‘I have come to Rome to speak for those who cannot speak – the silent victims of monstrous deeds. The only authorisation I have comes from my heart.’
Fifty years ago, Ben Ferencz was a young American lawyer who remarkably found himself as the lead prosecutor at the Nuremberg tribunal, accusing 22 high-ranking German stormtroopers of methodically murdering more than a million men, women and children. Today he came to Rome to call for a new kind tribunal: a permanent International Criminal Court.
For centuries, we have struggled to free ourselves from the scourge of war developing a whole body of law to reduce the atrocities and suffering as much as possible. But how to bring war criminals to justice? Not until the trials at Nuremberg after World War II have guilty individuals been brought to justice on a large scale.
The Nuremberg experience gave rise to high hopes for a permanent international court to punish the most serious international crimes, such as genocide, ‘crimes against humanity,’ war crimes, and aggression. Such a court was conceived as a powerful tool to deter and, if necessary, to bring to justice the future Hitlers, Idi Amins, and Pol Pots, and those who aid them. But even the horrors of the Holocaust and subsequent calls of ‘never again’ were soon lost in the new nationalist hysteria of the Cold War.
Not until the Cold War was over, after decades of delay, was the proposal for an International Criminal Court (ICC) formally reintroduced to the UN General Assembly in 1989. Rather rapidly, only five years later, a Draft Statute was finished, but most senior international affairs experts still predicted it would take another hundred years to create an ICC, because it raised fundamental issues concerning national sovereignty.
After successful completion of preparatory discussions it was decided to hold a treaty conference in the capital of Italy, Rome, to finalise the ICC treaty. Here the diplomats of over 150 countries gathered on June 15, 1998, with a daunting task in front of them. True, they had a draft Statute, but it included between 1,000 and 2,000 so-called ‘brackets’, or language not agreed upon and needing further discussion. Instead of having prepared compromises, nations came to Rome with scores of new proposals. Within 25 official working days, and more than 100 articles to be agreed to and to top it all the person many viewed as most capable to lead the negotiations> >fell seriously ill a few days before the start. The complications were enormous, the prospects of success minimal. The treaty would need innovative approaches to international diplomacy – and the assistance of civil society.
Already in the preparatory process there had been a remarkably high level of co-operation between friendly governments and private citizen’s groups. These groups, more than 800 from all regions of the world and sectors of society, had come together in 1994 to form the Coalition for an International Criminal Court. Members of the Coalition, though diverse in their viewpoints and goals, are united behind the general aim to create ‘an effective, just and independent International Criminal Court.’ The Coalition secretariat has kept both citizen’s groups and governments updated on developments in all relevant fields and helped groups and experts participate in the process.
In Rome the Coalition worked closely with the largest of the government negotiating groups, the so-called ‘Like-Minded group’ of over 40 countries. The development of a strong group of countries supporting an independent and just Court was crucial to the success of the negotiations.
The Like-Minded supported an important new trend in diplomatic decision making, ‘The New Diplomacy.’ This new model for international lawmaking implies that, instead of needing to have all states agree, treaties are made by like-minded governments. The traditional ‘consensus’ principle meant that virtually every country had to agree to every provision. Proponents of consensus argue that without the agreement of all the major governments the treaty won’t work anyway and can’t be funded.
But to insist on consensus means that years of endless, time-consuming and expensive negotiations may result in nothing or in treaties that are very weak, with unsatisfactory binding conditions, monitoring and provisions for compliance and enforcement. They are difficult to amend and operate in unduly cumbersome, inefficient, and expensive ways.
In recent years governments have begun to explore the option, in a very few instances, of coalition- based, majority decision-making by like-minded states. They prefer a workable, effective treaty which may initially not have the support of a few powerful countries to a bad treaty with more universal support. Over time, even without universal support, treaty law often becomes binding on all states over time.

Civil society Energises Rome
With over 250 citizen’s groups present, the Coalition was a visible, active presence at the Rome conference, dialoguing with governments, informing the press, and giving voice to the views of people from all over the world concerned about international justice.
The Coalition and its members issued detailed reports on the progress of the negotiations, which were an invaluable tool for both citizen’s groups and governments alike. The Coalition helped organise the conference’s only daily newspapers. Our regular press briefings provided the world’s media with frank appraisals of how governments were doing.
Continuously citizens groups met with government delegates to move the process forward. These dialogues were largely constructive rather than confrontational. Activists in Rome co-ordinated closely with national networks around the world. When we worried that a country was caving in on principles, we contacted ministers, parliamentarians, and media in its capital through our networks. For example, when French activists saw the negative role the French government was playing in the initial discussions, they began sending reports to Le Monde and other French media. The subsequent negative media attention on France was seen as a pivotal part of France’s more supportive positions toward the end of the conference.
Respected human rights defenders – such as Pierre Sane, Secretary General of Amnesty International; Fabiola Lettelier, whose brother was murdered under the regime of Chilean dictator Pinochet; Emma Bonino, European Commissioner for Humanitarian Affairs, and the irrepressible Ben Ferencz – used their considerable influence to pressure governments to move forward.
But on the final days of the conference it was clear that the United States, India and others were not going to support the compromises reached in informal negotiations and were using their considerable influence over other governments to build opposition to the emerging consensus. Many observers feared that a vote on the statute would be a close race.
Late in the evening on the last day of the conference, July 17, the President of the conference, Giovanni Conso of Italy, presented to the states the final draft statute. The United States almost immediately called for a vote. The statute won by a large margin: 120 for, 7 against, with 21 abstaining. The room erupted into sustained applause. The International Criminal Court Treaty was approved by the world community.
It was hard to believe. A Statute, which we were told would not happen for generations had been adopted after only four years of negotiations, approved by all but seven nations (including China, Israel, and the USA). Against all predictions we had got a court with jurisdiction over crimes against humanity, genocide, and war crimes. On top of that, against very hard opposition, the Court will have jurisdiction over crimes occurring in internal conflicts and peace-time crimes against humanity.
Advocates for the rights of women, children and victims celebrated the inclusion of provisions to protect those who suffer most in wars, women and children, and historic advances in the protection and rights of victims. Most agree that the Women’s Caucus was the most effective citizen’s caucus in Rome.
The new world court will have a strong relationship to the UN and Security Council, but with safeguards against the permanent members using their veto to shield themselves and others.
The ICC Treaty is far from perfect. If crimes are committed within countries that have not ratified, the consent of this country is required. And many were disappointed by the last minute addition of a seven year ‘opt-out’ for war crimes that allows states an exemption for seven years after they ratify the treaty.
But without doubt the existence of an ICC will serve to prevent and deter war criminals in the future. The establishment of the ICC will prevent the senseless and horrible murder and torture of millions of persons in the next Century. If only one Rwanda or Bosnia is prevented every 25 years, the ICC would more than pay for itself. The extreme options up to now of either doing nothing or waging war to stop war cannot continue to be the only peace-enforcement mechanisms of the world community. The ICC would be a major new tool to help deter war, restore peace, bring justice, and foster reconciliation.
That 120 nations voted to establish the ICC before the year 2000 is an unheralded, but significant measure of the progress of civilisation during the last half century. Over 70 states so far have signed the treaty, but the Court will only become a reality when 60 states have ratified it. Several human rights conventions, most less controversial than the ICC, have taken generations to be ratified. The task before the Coalition and progressive governments is as daunting as what was accomplished in Rome.
The Coalition, with its partners around the world, has embarked on an ambitious ratification campaign to get the Court established as soon as possible. As Ben Ferencz closed his appeal to governments in Rome, ‘If we care enough and dare enough, an International Criminal Court – the missing link in the world legal order – is within our grasp. The place to act is here and the time to act is now!’

Up  Next Making war criminals thin twice. William R, Pace from Peace is possible 30 short essays for peace. ed Fredrik S. Heffermehl. IPB 1999

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