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Protest at sanctions on Iraq, London, January 2001.


THE War Resisters’ International declaration, a somewhat more muscular version of the PPU’s pledge, begins with the simple statement: ‘ War is a crime against humanity’. It’s a statement that begs a few questions, but in general its intended meaning seems clear. If one were to walk down the street and ask passers-by whether they agree with such a statement, one suspects that a high proportion of people would sign up to it without much hesitation. (If you would help with such a survey in your locality, please let me know.) ‘Crime against humanity’ is also a phrase that trips easily off the lips of the Foreign Secretary and the Opposition spokesman. It certainly appeared several times during the second reading of the International Criminal Court Bill early this month. It’s unlikely, though, that they read the same meaning into it as the drafters and supporters of the WRI statement did. ‘Crime’ is a word most of us use loosely; and when it’s used more precisely (‘an act punishable by law’) that simple statement, sadly, becomes almost meaningless. Attach it to humanity and you enter a looking-glass world.

The International Criminal Court (ICC) will come into being when 60 states ratify the 1998 Rome statute. To date, 139 states have signed and 29 have ratified it. The second reading was part of the process of British ratification and, unsurprisingly perhaps, humanity did not get much of a look in during the five hour debate.

‘There could be no clearer case for the need to achieve international justice than Milosevic’, said Robin Cook in his opening statement which set the tone of the debate. Well, he would say that: he’s Foreign Secretary of a government which fully backed what many regard as illegal acts: the bombing of Kosovo and Serbia. (And it continues to back the bombing of Iraq.) These issues were unmentioned throughout the debate. Many NGO’s, relief agencies and other good people around the world wish for such a Court: it may help to put a brake on the appalling misery that war and armed conflict cause. But the House was, with a few notable exceptions, mostly exercised by worry that British troops might be hauled before the Court or ‘exposed to politically motivated prosecutions’.

The fact that the ICC has no authority to initiate an investigation where allegations have already been examined by the appropriate national authority did not reassure the anxious Members. Nor did the comforting words of the former head of British Army legal services, Major-General Tony Rogers: ‘When carrying out attacks on military objectives, we are already under obligation not to cause disproportionate incidental loss and damage to civilian populations. The Geneva Conventions have been put to the test recently. I am not aware we had any difficulty with our treaty obligations during the Gulf War of 1991 or the Kosovo war of 1999.’

Opposition spokesman Francis Maude wasn’t satisfied either. He quoted the NATO commander Admiral Eberle: ‘It is vital that commanders in the field should not be put in a position where they are concerned as to what is right and what is wrong at the expense of risking their own lives and those of the men they command.’

The United States, too, is less than enthusiastic about the ICC, and (like Israel) only signed up at the very last minute on 31 December 2000 to avoid being totally excluded from future detailed negotiations leading to the Court’s establishment. Donald Rumsfield, the US Defence Secretary, summed up the American position: ‘American leadership in the world could be the first casualty of the Court.’ It is a curious fear, seen in the light of past experience. For example, the actions of NATO forces in Kosovo were the subject of the far more powerful Yugoslav tribunal with independent investigatory powers, whose committee investigating the NATO bombing recommended that no action need be taken – the civilian deaths were not intentional.

The ICC as conceived at present has in its sights the kind of brutality (Rwanda, East Timor, Kosovo...) that we learn about largely from our TV screens; which is surely a good thing. We should not forget, however, that war crimes are defined and codified by legislators whose view of what a war crime may be will be partial – they are unlikely to see anything they do as criminal. Furthermore, not all states will be equal before the law. It’s one thing subjecting Rwanda or Yugoslavia to international law; it’s quite another prosecuting China, Russia or the USA. The Court’s partiality will be a serious problem.

More fundamentally, the concept of a ‘war crime’ assumes the legitimacy of ‘war’. This makes supporting the ICC a problem for those who oppose war, let alone preparations for war. Like all the other legal instruments and conventions which seek to protect civilians and reduce the impact of war, the ICC (if it comes into being) will doubtless be imperfect. But something, perhaps, can be gained by its existence.

For example, the UN General Assembly, a body opposed to the use of nuclear weapons, will elect the 18 judges and prosecutor by secret ballot. Who knows what possibilities this could open up. ‘The Court is a tool against wickedness, not a solution,’ said Tony Worthington ‘We must build a culture of justice with which to replace the current culture of immunity.’

We must also build a ‘culture of peace’ – another currently popular phrase which is being assimilated into popular usage and, alas, also losing much of its meaning. If we accept the ICC as a stepping stone to a war-free world, we must go on challenging the legitimacy of war. If we want a culture of peace, we must make sure that armed force has no place in that vision.
Jan Melichar


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