No jurisdiction over SL - ICC

18 July 2011 05:56 am Views - 10688

Report courtesy the Australian

As head of the International Criminal Court, President Sang-Hyun Song runs a tribunal that sits above national legal systems.

The judge says his court complements national systems of criminal justice. But some critics -- particularly in the US -- have described the ICC as a threat to national sovereignty.

That threat, if it exists, has had little impact on the 116 countries, including Australia, that have acceded to the Rome Statute that established the court. In theory, these countries have empowered the ICC to sit in judgment on the conduct of their armed forces.

Concern about the ICC emerged briefly last year during the furore over the military prosecution by Australian authorities of troops who had served in Afghanistan.

Some saw the decision to prosecute Australian soldiers in Australia as a way of ensuring they would never be brought before the ICC.

Yet all the concerns about national sovereignty, according to President Song, are based on a misunderstanding of the court's role.

The ICC, he says, is a court of last resort. Its jurisdiction is limited to ending impunity for war crimes and a small number of similar "heinous" offences.

It can generally deal only with matters from countries that have endorsed the Rome Statute. And even then, it can only step in if national legal systems are unwilling or unable to act.

"The ICC, under any circumstances, will not and cannot and should not just jump over the national boundary of sovereign states and stir around the normally functioning judicial system of a sovereign state," President Song said.

"It is basically your job and we remain outside the operation of the national legal system, just waiting to step in in the case of inability or unwillingness." However, at the height of last year's furore over the prosecution of Australian troops, Australian academics pointed out that it was the ICC that decided whether countries were unwilling or unable to prosecute.

President Song, who is a distinguished South Korean jurist and former judge-advocate of the Korean army, was speaking to The Australian this week during a break in the commonwealth law ministers' meeting in Sydney. While officially an observer, President Song and the ICC had a direct interest in its proceedings.

After a year of discussions between the two organisations, the commonwealth law ministers on Wednesday endorsed a memorandum of understanding with the ICC and signed off on a model law.

The judge believes these initiatives should strengthen those legal systems that might struggle to deal with crimes against humanity, war crimes and other matters that could fall within the ICC's jurisdiction.

And that, he believes, will reduce the need for the ICC to intervene.

"The International Criminal Court operates on the basis of the complementarity principle; that it is primarily the responsibility of the national legal systems of sovereign states to conduct generally investigations and prosecutions of heinous ICC crimes," he said.

"If, however, the national legal systems of sovereign states are not able to do the job for the reason of the paralysis of the system . . . if the national legal system is unwilling to do the job for political reasons or some other reasons, only then can the ICC step in."

His assessment about the impact of this week's agreement is in line with that of Akbar Khan, director of legal and constitutional affairs at the commonwealth secretariat in London.

Mr Khan, who is a British diplomat and former London barrister, said the agreement with the ICC would have the effect of helping member states be more effective in investigating and prosecuting crimes covered by the Rome Statute.

"The ICC is a court of last resort," Mr Khan said. "The problem is that cases are getting to the ICC that should, properly in my view, remain at the domestic level.

"And one of the reasons cases find their way to the International Criminal Court is that, at the domestic level, they don't have the legislation."

President Song said it had widely been considered it would be 10 years before the Rome Statute was ratified by the 60 countries needed in order for the ICC to begin operations.

"But within four years we got 66 ratifications -- more than enough. That's how we started in 2002 -- much earlier than originally expected -- and several more are soon joining. We have been making quite impressive progress in this respect."

The latest country to sign the statute is Tunisia, the first ICC state party from the Arab world.

Egypt has since announced that it too intends to join the ICC.

"For the first time, Arab countries are clearly, actively considering ratification," he said.

"There is momentum. The trend is changing in favour of the ICC or international criminal justice."

For the ICC, this is quite a change.

"Until some years ago we were worried about our own survival," he said.

But with the court's position assured, it is now confronted with a different problem -- criticism that only some of the world's war crimes and crimes against humanity are being dealt with by the court.

One of the most glaring omissions is the court's inability to deal with acts of international terrorism by non-state parties.

Another omission has been the well-documented abuses by the Sri Lankan military during the final stages of that country's civil war. Both of these matters are beyond the limited jurisdiction of the ICC.

The court covers just four areas: genocide, war crimes, aggression and crimes against humanity. There had been an attempt to include terrorism but it had not yet succeeded, President Song said.

When asked if he would like to see terrorism brought within the court's reach, he declined to express a view because he said it was a matter for "the assembly of state parties", not the court.

On the final days of the Sri Lankan civil war, he said that country -- along with Israel and the US -- had not acceded to the Rome Statute.

So without a reference to the court by the UN Security Council, the ICC was unable to act.

"Whenever certain atrocities are committed in the corners of the world, everybody seems to refer to the ICC as an ultimate place to send that situation to," he said.

"We are very glad to notice all this growing recognition of the court. On the other hand we have to play by the rules that are specified in the Rome Statute."

Therefore the court was unable to act on matters from non-signatory states such as Sri Lanka, like Israel and the US. (Source : The Australian)