by Jennie S. Bev
Wednesday was the 60th anniversary of the United Nations Universal Declaration of Human Rights. We have come a long way from the first legal system, which was Hammurabi’s Code; to the universal concept of jus gentium; to the Magna Carta; to the first war crimes trial of a head of state, Charles I, in 1649; to the Declaration of Rights by H.G. Wells; to the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide on Dec. 9, 1948, as proposed by Raphael Lemkin; and eventually to the 1948 Universal Declaration of Human Rights.
As the result of ongoing human rights activism that has elevated its status to idealism and eventually to a worldwide ideology today, the International Criminal Court, established by the 1998 Rome Statute, serves as the only permanent court jurisdiction over four offenses: genocide, crimes against humanity, war crimes and the crime of aggression. The latter is yet to be defined by the states involved.
This permanent court eliminates the need for the United Nations to establish ad hoc tribunals, formerly known as International Tribunals. However, as of Nov. 26, 2008, Indonesia has yet to ratify the Rome Statute, despite 56 ratifications and 62 signatures from other states. During the Clinton administration, the United States signed the statute in 2000, only to have it nullified by George W. Bush in 2002. This means that both Indonesia and the United States are nonsupporters of the ICC and are outside its jurisdiction.
Still, this court is a breath of fresh air in a world filled with genocide and massacre.
For the ICC to prosecute all four offenses, it adopts basic principles of guilt which can be found in most advanced legal systems. Such principles are two-sided swords and include mens rea (intent with knowledge of likely consequences), being a natural person (individuals, not institutions) and being more than 18 years of age. The Rome Statute, however, does ease one basic principle as the result of the Nuremberg precedent, in the concept of “superior order.” This defines commanders of the military, paramilitary, police, government or other rank-and-file authorities as “responsible” individuals to be prosecuted.
Such principles, however, also have substantial loopholes. Under mens rea, for instance, it would be extremely difficult to prove Josef Stalin’s forced famine in Ukraine in 1932-33 as genocide. The 1948 Genocide Convention refers to the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
Under the principle of a natural person, it would also be impossible to prosecute a particular regime, government or political party, such as Indonesia and Suharto for the 1965-1966 massacres under the guise of “communist eradication,” unless superior order could be proven beyond reasonable doubt. The over-18 principle would place Khmer Rouge and Sierra Leone child soldiers outside the court’s jurisdiction, regardless of their ranks. The May 1998 riots and Semanggi tragedies in Jakarta would be even more difficult to nail down as the puppeteers have yet to be identified.
It might be sickening to realize that it is beyond the ICC’s jurisdiction to try countries initiating attacks against other countries, or regimes ordering genocide against particular groups. It is even more nauseating to known that some states where individuals who allegedly committed crimes against humanity reside freely have not signed the Rome Statute.
Such a political strategy might not be acceptable by conscientious citizens of the world, but it is a bitter pill we must swallow for now. Indeed, it is an uphill battle but one that we all need to fight for. Even if it takes another 60 years.
The Jakarta Globe, December 11, 2008