- The Washington Times - Monday, July 1, 2002

The following are the answers to some frequently asked questions about the new International Criminal Court, whose authority takes force today:
Q: What can the United States do to protect citizens from a court that has entered into force?
Washington is trying to create havens of protection for U.S. service members one legal agreement at a time. At the United Nations, diplomats are trying so far, unsuccessfully to exempt from prosecution soldiers, civilians and government officials in connection with U.N. peacekeeping missions and military operations endorsed by the U.N. Security Council. Washington is also trying to amend bilateral military contracts called status of forces agreements, or SOFAs.
Q: How will the ICC decide what to prosecute?
The prosecutor will consider recommendations from the Security Council and from nations that have signed onto the treaty. He or she will also have the power to initiate an investigation.
Q: How will the court function?
Each trial will have three judges, a lead prosecutor and no jury. Defendants will have full representation. All proceedings will be translated into English, French and the languages of the conflict. Court chambers, libraries, offices and possibly a detention facility will be built near The Hague by 2010.
Q: That sounds expensive.
The ICC is expected to cost roughly $30 million at first, including provisional office space and hiring less than existing tribunals. After that, the budget should be roughly $90 million a year, rising and falling depending on the number and complexity of prosecutions. The full cost will be carried by countries that have signed or ratified the treaty establishing the court.
Q: Who will run the court?
Nations that signed or ratified the treaty will elect 18 judges, a prosecutor and a registrar, to be sworn in by February 2003.
Q: What is the relationship between the ICC and the Security Council?
Deliberately minimal. The council may refer situations for consideration, but it cannot derail a prosecution. However, the council can demand that the prosecutor defer an investigation for up to one year but only if all five veto-wielding nations agree.
Q: What if a government wants to prosecute a case through its own courts, under its own laws?
A legitimate national prosecution will trump an international trial regardless of its outcome. The ICC will defer to a national court system if a capable one exists. That means the Pentagon will be allowed to try errant soldiers through the court-martial system, as [well as individuals such as] Saddam Hussein or Kim Jong-il.
Q: Legitimate?
Often a state that has been through a civil war, for example, does not have a functioning legal system or capable legal experts. Other times, the government decides its soldiers have done nothing wrong. If an authority is unable or unwilling to prosecute, that's when the ICC could pick up a case.
Q: Who is liable to be prosecuted under the ICC?
From today forward, any soldier who commits gross violations of human rights either in his own country or abroad could be called before the court. Military commanders are culpable if they knew what was going on or should have known. Political officials could be prosecuted as well, if they ordered the unacceptable behavior or did nothing to stop it. Civilians are unlikely to end up in the dock, but they are not exempt.
Q: Aren't there already war-crimes tribunals?
Courts for the Balkans and Rwanda were created by the Security Council in 1993 and 1994. It is widely assumed that they will be folded into the new tribunal if they have not wrapped up their work by the time the ICC is fully functioning. In addition, many of their legal precedents and findings will provide case law for the new court.
Q: Aren't any other nations opposed to the court?
Of course. Among those that have neither signed nor ratified: China, Japan, India, Indonesia, Iraq, Syria, Saudi Arabia, Libya and Pakistan.
By Betsy Pisik

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