Challenges Ahead For International Criminal Court, Says Leading War Crimes Expert
November 12, 2013 1:23 p.m.
Eric Stover, Director, Human Rights Center, University of California Berkeley
MAUREEN CAVANAUGH: This is KPBS Midday Edition, I am Maureen Cavanaugh. When governments engage in atrocities like the alleged chemical attacks against citizens in Syria, world nations have set up a court to bring guilty to justice. But eleven-year-old but the eleven-year-old International Criminal Court is still trying to establish itself as a big tribunal. His authority as ever been established. It's becoming under attack by African nations. Eric Stover, welcome to the program. That the International Criminal code court was first established in 2002 to prosecute the world's most serious crimes. Remind us how this got started.
ERIC STOVER: It really was after World War II. There is a movement after the Nuremberg trials in Tokyo trials. There is a movement towards establishing national criminal justice your within the newly created United Nations was a movement to have a permanent international court but with a quick war, the separation between the United States and the Soviet. We really did not emerge from the Cold War until the mid to early 1980s. At that point the first courts established for national courts and there was one night Argentina and Yugoslavia. Then the International Criminal Tribunal for Rwanda. There is a push in the reopening to have an international court that would have universal jurisdiction and not be restricted to certain countries. It finally had fruition and came to be in July 2002.
MAUREEN CAVANAUGH: So the criminal court that people hear about, still underway, they have nothing to do the International Criminal Court. That was another tribunal.
ERIC STOVER: Exactly, what happened was it first began in Bosnia and Croatia and Serbia were saying that cars were being committed there that needed to be adjudicated by a national court. International court. They use their in their chapter 7 powers and after the genocide we saw in Rwanda, they established a separate court. Quit the same prosecutor but these courts were restricted temporarily. They were only looking at crimes committed over a certain period of time and geographically bound so we're only looking at crimes happening in Rwanda. What happens later is government computer they agreed on a treaty. That treaty wants there is enough countries voting and agree to it, who establish a statute and create International Criminal Court.
MAUREEN CAVANAUGH: We see governments come together and create this international court that the US is not one of those governments.
ERIC STOVER: See to the US, it's always been opposed to it. Interestingly, under the Clinton administration they were involved in the tragic drafting of the statute. The last-minute, during meetings taking place in Rome there was a decision that we would not assign onto the court. Later, after other countries had signed on we signed on as well. Then it has to go to Congress and be ratified, to be a member of the court. What happened was, once the Bush administration came into power they were opposed and down to the court. The UN Ambassador of the United Nations undersigned is from the court. From that point on, there was a movement against it. In August 2002, just after the court was established, they passed in the American service personnel protection act in this act said that if any American personnel were brought before this court, which could potentially happen if they were serving in countries that were members of the court, that we would even invade the court headquarters in order to liberate them. They would give us that poor to do that if that would probably never happen but that would be the extreme which we did not want to have an American service personnel being judged for any behavior for an international court.
MAUREEN CAVANAUGH: The International Criminal Court just past to the trial of Kenya's president. He has been charged with crimes against humanity, what are the nature of those crimes?
ERIC STOVER: That goes back to the election in Kenya in late 2007. It stretched into January. During that time he and another vice president, their groups allegedly organized for attacks against other groups. They were killing using gains and use the radio to get people as it happened in Rwanda to incite people. The International Criminal Court decided under his own powers, that he was able to investigate it and he brought charges which judges agreed to against these individuals. Their others also charged as well. It happened is together eventually got that elected president. From that perch they began to do a stick about. They went to other African leaders and said we need to stop this court. The irony of this is that there are thirty-four African members of the court, and many distinguished African leaders, who spoke out in support of the court. What happened is the African unity meant recently, and they were about to pass a resolution calling for all of the African countries to leave the court. The backlash they came from African leaders ñ they backed off. They requested that the trial be transferred to Kenya and not be held in The Hague. So they can do with the recent terrorist event
MAUREEN CAVANAUGH: There's a case to be made whether or not it wins the day. In African nations have targeted by the ICC. In the sense that they're up and other conflicts and other potential atrocities that have not been addressed by the ICC. Why so much focus on Africa?
ERIC STOVER: We have to get into the details. We have to understand the procedure. There'll be three ways that a case can come before the International Criminal Court. The first is that the prosecutor can investigate and decide to watch prosecution. That has to be confirmed by judges. Second, any member can refer the situation in their country to the court. First case was referred by a president, the president of Uganda, with the resistance army of rebel group working in the North. The leader of that country, referred to the court. The third way in which case court is by the Security Council. The members of the Security Council have to agree to refer a situation.
MAUREEN CAVANAUGH: And that's where the politics come in.
ERIC STOVER: Yes it what you had is to referrals so far. First over the massacres taking place in Darfur. The circuit Security Council referred the case. That included the United States. Including Russia and other countries. Later in 2011 we saw the referral of Libya situation to the courts. The irony here, and a lot of African countries are asking why the Americans can't for these cases yet they are not members.
MAUREEN CAVANAUGH: In your view, does the International Criminal Court need more muscle? Is it possible for them to get more muscle without US support?
ERIC STOVER: My view is that the United States in the future will become a member of the court to it I think it will, it will time to time. Right now is that the appropriate time. We've seen the Obama administration do quite a bit for the court. The court will finally mature and be able to its job properly constrained court. We saw this with the International Criminal Court in Yugoslavia. It was American DAs that were seconded that wrote the statute send growth according the beginning. We have the ability to help with these investigations. It's a sort of technical support that the court needs. I just read a session for the investigators two weeks ago. We brought cyber investigators from the United States Court on the latest technologies.
MAUREEN CAVANAUGH: And yet there is a visceral feeling amongst many Americans that people who are sent into wars by the United States should not be tried in an international forum. They should not be subject to the kind of scrutiny. They think that there's any evidence that you see that we're going to overcome that, or find another way of looking at that?
ERIC STOVER: That is a real misunderstanding. The International Criminal Court is a last resort court and has a principal called complementarity. If Kenya can show that it's courts are capable of delivering a fair and unbiased trial against someone did they show the child there. The same can be done in Khartoum in Sudan, the trial should be held there. If the United States has a situation as we didn't I rock, if we set up a military tradition they will not view referred to the International Criminal court. What does this slips a bit of judicial development into countries. It tells countries that if you investigate and do these fairly improperly, there will not be in need to send in. That is what the unfortunately the act to the trade deal of damage and a lot of Republican and said Democrats realize that we're not going to get cases referred to the Hague. We needed some point to join.
MAUREEN CAVANAUGH: I have end it there. Thank you.