Reasonable Doubts

It’s almost a surprise to find that The Hague, seat of government for the Netherlands, is a functioning city with shops and schools and an electric tram railway. In the imagination, it can seem like one big courthouse, and with good reason. Even the Dutch refer to it as the “legal capital of the world.” For almost sixty years, it has been home to the United Nations’ International Court of Justice. For the past ten years, it has hosted the International Criminal Tribunal for the former Yugoslavia. And now, after a five-year setting-up period, it is about to welcome the newly formed International Criminal Court (icc) to its constellation of legal institutions.

On a cool August day of heavy overcast, I walk along a high fence in front of a glass and steel office tower, finally locating the gate through which to enter an austere lobby peopled by security guards. I show my passport, have my bag scanned, and wait for Lotte Akkerman, personal assistant to the president of the icc, to be called down to escort me through a pair of electronic doors and up a fast elevator. The building has been provided by the Dutch government for use by the ICC until 2010, when a new, permanent complex should be ready. Once we reach our floor, Akkerman leads me through a rabbit’s warren of cubicles until we arrive at a corner office where a long conference table faces a bank of windows. There, I’m introduced to the court’s freshly elected president, a fifty-six-year-old career diplomat from Canada named Philippe Kirsch.

For many, the creation of the ICC is an event of millennial proportions, a triumph of justice over force. While the International Court of Justice handles civil disputes between countries, the ICC will try individuals charged with responsibility for the worst crimes committed in the heat of war. It in-tends to be, as Justice Jackson wrote, portentously, of the Nuremberg trials at the end of World War II, “the most significant tribute that power has ever paid to reason.”

A global rule of law has been the dream of one-worlders for over a century. In 1899, The Hague played host to a peace congress called by the Czar of Russia with the aim of putting an end to war and making international justice paramount to force. That the effort failed (it was entered into with deep cynicism by most participants), and that the next half century saw millions perish in the most grisly fashion seemed only to enhance the idea. In an ideal world, law—rather than force—would resolve disputes and, should war break out, the atrocities that are its inevitable by-product would be dealt with in court, just as murder or assault is in civil society.

In 1948, with the horrors of the Holocaust fresh in everyone’s memory, the General Assembly of the recently established UN labelled genocide “a crime under international law” and invited the International Law Com-mission to study the setting up of a court to try persons charged with it. Fifty years later, in 1998, a month-long conference in Rome finally produced a treaty that led to the creation of the ICC.

There have, in fact, been more than half a century of ad hoc initiatives of this nature, going back to the Nuremberg trials and including the more recent tribunals established by the Security Council in the wake of conflicts in Rwanda, Sierra Leone, and Yugoslavia. One of the major arguments that ICC proponents make in its favour is that it will supplant these initiatives; all future perpetrators of acts of violence that are against international law—ethnic cleansing, rape, civilians brutalized by armed conflict, the use of children as soldiers, and, the most chilling of them all, genocide—will have to answer to icc prosecutors and judges. The court believes it will become a permanent part of the way the world will adjudicate itself.

The ICC has come into being more quickly than anyone thought. “People expected ten, fifteen, twenty years,” says Judge Kirsch, who has a law degree from the Université de Montréal and a resumé densely packed with delegation chairmanships and high-level diplomatic appointments (he was once ambassador to Sweden). Before being elected president, he was already deeply immersed in the court, chairing the committee appointed to set it up under the Rome treaty. The committee’s work was a delicate business: defining what would constitute crimes, setting intricate procedures and rules of evidence, and securing agreement from as many nations as possible. One lawyer from Nigeria told me, “It was good we had a diplomat doing the job.”

But support was fluid, difficult to nail down. Forty-seven countries including, most conspicuously, the United States, refused to ratify the court after signing its original statute. But the fact that ninety-two countries have ratified it has prompted the UN to give it the green light.

The timetable will also be driven by the prosecutor. A mere four months after the chief prosecutor, Luis Moreno-Ocampo from Argentina, was sworn in last April, he had received more than 500 “communications” re-commending possible indictments. These submissions run the gamut from reasoned arguments to cursory denunciations and include a forty-seven-page affidavit from the Athens Bar Association demanding that British prime minister Tony Blair be charged with crimes against humanity. The prosecutor’s staff will have to go through them all, deciding which to discard and which might lead to the ICC’s first indictments. All of this means that Kirsch, who as president is not only a judge but the senior officer of the court, will have to hustle to get his staff settled and renovations done so that by January he will have at least a pre-trial chamber built. “Obviously,” he says, “there are great expectations of the court.”

W ere you in charge of setting up such a lofty and idealistic institution, David Jacobs would be the sort of person you’d expect to support it. Born into a Jewish family of physicians in Cardiff, Wales, who moved him when still a young boy to Toronto, Jacobs is a lawyer with a left-wing bent and an internationalist outlook. He has been active in the New Democratic Party, is a former chair of the Constitutional and Civil Liberties Section of the Canadian Bar Association, and was a public critic of the war in Iraq.