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Volume XXXIII No. 3 (July-September 1998)
The International Criminal Court: A Step Forward in Moralising International Relations—Interview with Emma Bonino
After months of preparation and weeks of deliberation, the Rome Diplomatic Conference concluded in July 1998, establishing the International Criminal Court (ICC). While in many ways setting an historical milestone, this achievement was overshadowed by the opposition of, among others, the United States, and the eleventh-hour conversion in favour of France.
Emma Bonino, representative at the conference of the European Commission, which had observer status, is one of Europe’s most enthusiastic supporters of the new permanent International Criminal Court. In this interview, she briefly explains why.
The International Spectator: What is your overall evaluation of the decision of the Rome conference to establish an International Criminal Court?
Emma Bonino: On the whole, my opinion is positive. For the first time in the history of humanity, an overwhelming majority of states convened to set up a permanent International Criminal Court destined to judge the perpetrators of abominable crimes such as genocide, crimes against humanity and the most serious war crimes. This outcome was not to be taken for granted beforehand and, indeed, there was concern up to the very last that the conference would fail.
Certainly some important countries, such as the United States, China and India have, for various reasons, not signed the Court’s founding Statute, but it should not be forgotten that 120 countries, including the other three permanent members of the Security Council, voted in favour of the final document. This can be seen as a good omen.
I.S.: To what extent can this permanent court remedy the shortcomings of ad hoc ones like the International Tribunal for the Former Yugoslavia?
E.B.: A permanent court has a number of operational advantages with respect to an ad hoc court. First of all, it has structures that have already been broken in, staff with greater experience, and finally, it will not have to deal with the financial problems that ad hoc tribunals face. Above and beyond these specific advantages, the main merit of a permanent court is its intrinsically dissuasive nature. Once instituted, no criminal or instigator of genocide will be able to feel safe—beyond the reach of justice—counting on the complicity, the support, or simply the desire for peace and quiet of some sponsoring country.
I.S.: Can an International Criminal Court work without the United States? What will be the effects in general and on other countries of the US decision not to participate in the Court?
E.B.: I believe that the Court will be able to start operating in a credible manner even without the direct support of a strategically important country like the United States. It is clear, however, that this country’s progressive involvement in the activity of the Court in the medium term is not only to be hoped for but probably also inevitable.
It should be underlined that the American administration was not against the institution of the Court as such; in fact, President Clinton spoke about it in positive terms on a number of occasions. For the moment, the isolationist sentiments of a part of US public opinion and the US Senate have taken the upper hand along with the Pentagon’s fear that American soldiers could be subjected to the jurisdiction of the Court. I am nevertheless convinced that, with time, reason will prevail and the United States will eventually support an institution that responds to those values that the Americans continuously claim to respect and defend.
As for the effect that America’s abstention could have on other governments, it seems to me that the isolation of the American delegation in Rome was indicative of the will of the vast majority of other countries to go ahead even without the participation of the United States.
I.S.: Did the EU countries have a common position during the conference? What were the dynamics among European countries during negotiations? What is the outlook for European participation in the future?
E.B.: In principle, all EU member states supported the idea of setting up an International Criminal Court. Even though the European Union was not able, for various reasons, to speak with one voice at the Rome conference, the member states constantly coordinated their positions during the negotiations, achieving an outcome with I judge as rather positive, on the whole. In addition to Italy, the host country, the other EU countries that were particularly committed and active were Germany, Belgium and the Netherlands. A rather important role was also played by the United Kingdom, which had the EU presidency in the first half of 1998 and made every effort to prepare for the Rome negotiations adequately. I therefore expect the European countries to play a leading role in ratifying the Court’s founding treaty and concretely establishing the new international institution.
I.S.: How can the Court cope with the crime of “aggression”?
E.B.: Including “aggression” among the crimes subject to the Court’s jurisdiction was one of the most delicate points to be negotiated, in absence of a universally recognised definition of that crime and the difficulty in reconciling the Court’s role with the responsibilities of the Security Council as concerns maintenance of peace. In the end, it was decided—and I consider it a wise decision—to include “aggression” among the crimes under the Court’s jurisdiction, but to postpone exercise of this competence until an agreement is reached on the definition of aggression and on the way in which to exercise the Court’s competence relative to it.
I.S.: Amnesty International, among others, was against the Court on the grounds that no court is better than an ineffective one. What is your opinion on this?
E.B.: I too have always been of the opinion that no court is better than an ineffective one. But I am convinced that, despite certain concessions which had to be made during the negotiations to obtain a broader consensus, the outcome is more than satisfactory and solid foundations have been laid for the future of the Court. To those who would have preferred to reject all compromise, my only answer is: it is better to have a court in the year 2000 that requires perfection than no court at all. If the opportunity offered by the Rome conference had not been taken, many years would have to pass before the project of a permanent international criminal court could be credibly launched again.
I.S.: Can the Court judge soldiers of non-member states who commit a crime in a member state? If not, will this not limit the effectiveness of the Court?
E.B.: According to Article 12, para. 2 of the Statute, the Court can exercise its jurisdiction in that case and this is precisely one of the reasons that drove the United States to oppose adoption of the Statute. It is, in fact, one of the Statute’s qualifying points and attests to the negotiators’ desire to establish a truly effective Court and not merely a sham judicial institution.
I.S.: How do you envisage the Court’s future development?
E.B: Like all new international institutions, it will take some time before the Court will be able to operate normally and make its weight felt on the international scene. Nevertheless, I am convinced that this breaking-in period won’t take long, also because the Court will be able to build on the precious experience of the ad hoc tribunals.
I would just like to add that I am not so naive as to think that the Court can constitute an absolute guarantee against new atrocities and new crimes. I do believe, however, that it can be a deterrent for the perpetrators of such crimes and a step forward in the necessary moralisation of international relations.
Emma Bonino is European Commissioner for Humanitarian Aid.