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Crime and Criminals: Define, Deter, Punish

A crazy paradox of our times is that this, the bloodiest century on record, has also seen unprecedented progress in setting global standards of good and bad behaviour. International treaties are in place defining war crimes, crimes against humanity, genocide, human rights (and their violation), torture, even some unacceptable weaponry. Until now, enforcement of international criminal law has been political and psychological-- monitoring, exposure, censure-- which has some influence on most governments, at least on what they say to the world. Even nasty ones don't like criticism. In extremis, the Security Council can intervene, but it seldom does. The International Court of Justice (ICJ) established in the U.N. Charter was intended to deal primarily with disputes between States, although it may render an opinion on matters referred to it by the Secretary-General or a competent U.N. entity (e.g. the 1996 ICJ opinion on nuclear weapons). It is not a prosecuting court and it does not try individuals.

Internationally this left an unprotected impunity gap, free passage for mass murder. A great achievement was the adoption, on 17 July 1998, of a Convention and Statute for an International Criminal Court, subsequently endorsed by the G.A. There has been a lot of publicity about this Court, so I assume most of you know a good deal about it. To recap the basics: approval came at the 160-nation diplomatic conference in Rome, June-July, 1998-- 120 yes, 7 no, 21 abstain. This was an "unrecorded" vote, so we don't know for sure who were the seven opposed. (There is speculation-- China, Israel, India, etc. We will eventually know who does not accede to the Convention.) Canada was up-front in political and technical support. U.S. was openly opposed because of (unfounded) fear that American soldiers serving abroad might be snatched up, out of U.S. jurisdiction. Thirty-nine states signed the Convention on the day it was adopted; by December 1998 the number signing was sixty-one. The Court can be established after signature has been followed by formal ratification by 60 countries. The Court will have jurisdiction over genocide, war crimes and crimes against humanity. It may eventually also handle some forms of aggression, to be determined later by the ratifying States. It will try individuals, maximum sentence life in prison. It may take up cases referred by States or by the Security Council, or it may go after them (prosecute) in States that have acceded, or agree to the prosecution. States have first go at prosecution. If they can't or won't, the International can. (This arrangement is more limited than the normal international law principle of "universal jurisdiction," the principle under which Chilean General Pinochet might be tried in Spain.) This is a streamlined summary. Three Preparatory Commissions will fix practical details for the Court to function, the first meeting now (on rules of procedure) as I write. (I sat in on the opening-- careful consideration of technical matters, how the prosecution would work, etc.) States parties (i.e., having ratified, formally acceded) will meet every seven years; these may clarify and amplify. It will be a few years before this Court begins operating.

A strong and sophisticated citizens NGO network made a significant contribution to getting the Convention adopted in Rome. This is recognized in the open door for continued NGO participation in the Preparatory Commission.

Meantime, the two special War Crimes Tribunals created by the Security Council are underway. The Tribunal on Yugoslavia (since 1994), with a staff of 600 from 50 countries, has done four cases, ten in the works-- and who knows how many more in the making. Top political and military instigators of this brutal conflict have yet to be apprehended. Canadian Louise Arbour is chief prosecutor. American Gabrielle Kirk McDonald, veteran of civil rights at home, is President of the Court. The Tribunal on Rwanda, after a shaky start, is striking at the top. Former Prime Minister Jean-Paul Akayesu confessed to genocide and crimes against humanity during the 1994 massacres, and was convicted in September 1998. In December, a former militia leader, Omar Serushago, pleaded guilty to these same crimes. In Rwanda itself, some 126,000 accused are languishing in overcrowded jails, in the hands of the harassed and distracted government.

There is some exploration of arrangements to try surviving Khmer Rouge (Cambodia) leaders, but I have no idea how this is going.

Turning away now from massacre, we confront globalization in the form of organized transnational crime. The G.A. decided to make an ad hoc committee responsible for drafting a comprehensive convention to break up these freebooters. A draft convention on nuclear terror has been put back in the hands of an ad hoc committee for refinement. Linking drugs and crime, the U.N. top-boss against all that, Pino Arlacchi, told the G.A. that the Special Assembly session in June 1998 had succeeded in adopting an international package aimed at reducing demand and supply of illegal drugs.

The Tenth Congress on the Prevention of Crime and the Treatment of Offenders will be held in Vienna from 10 to 17 April in the year 2000. The G.A. has asked itself to decide in 1999 on holding a high-level meeting in 2000 on how to handle terrorism.