[Calling our international lawyers brigade: could this be true, that the ICC is limited in its jurisdiction to "state actors"? And then only to state actors who have signed up?]
Financial Times, Dec 20, 2001 LETTERS TO THE EDITOR: Doubts over International Criminal Court
By CHARLES TANNOCK
> From Mr Charles Tannock MEP.
Sir, Judy Dempsey ("Europeans dismayed by US go-it-alone approach to justice", December 14) makes the unsubstantiated allegation that "legal experts" claim that the correct venue for trying international terrorists would be the as yet not operational International Criminal Court. This Court, envisaged to sit in The Hague, is not currently empowered as only 47 countries have ratified its founding Rome Treaty (with a stipulated minimum of 60 being required) and the only global military superpower, the US, has yet not joined up.
I have only seen a number of politicians (particularly those opposed to the US-led Afghan offensive and critics of US emergency military tribunals) make the claim for ICC jurisdiction over the perpetrators of the September 11 atrocities. Many of us with an interest in this area believe that the treaty, as it is currently worded, does not apply to Osama bin Laden, since the statute applies only to "state actors".
Indeed, the exclusion of terrorists from its provisions, who some claim are better classified as illegal combatants in Geneva Convention terms (as they wear no uniforms, conceal their weapons and act on behalf of no recognised sovereign state), and the asymmetry that this creates was one of the major criticisms levelled at the final draft by the US. Thus, although President Bill Clinton signed the treaty, the US Senate is refusing ratification fearing the singling-out of US servicemen for specific targeted indictments by its enemies.
The treaty's very wide definitions of war crimes and crimes against humanity, which include not only rape but also the bombing of an art gallery, coupled with the concept of "command responsibility", create special problems. For instance, some military leaders whose conduct might otherwise be restrained by the existence of the court may conclude that in the event of losing a war they would be found guilty of some excess committed further down the chain of command, thus depriving the court of much of its deterrent power.
It is also debatable whether Taliban leaders, such as Mullah Mohamed Omar, could be tried by this court as the UN only recognises the Northern Alliance/ United Front government of President Rabbani, presumably excluding Talibs as "state actors". Besides, Afghanistan would have to ratify the treaty first and it is not retrospective in application.
It is a bad treaty - as currently drafted - and Senator Jesse Helms' qualms about US participation are, in my view, fully justified.
Charles Tannock, European Parliament, Brussels, Belgium
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