Understanding global security - Peter Hough

SOCIAL IDENTITY AS A THREAT TO SECURITY
selectively to date. The ICC may, even, come to do more than this and evolve into an
institution capable of implementing the full range of human rights instruments.
The idea of an international court to try individuals, alongside the International
Court of Justice dealing with state-to-state conflicts, was around at the birth of the
United Nations but, like many other global aspirations, was frozen in time by the
Cold War. 12 An early draft of the genocide convention floated the idea of a court
to enforce its provisions but this was soon shelved as too radical a notion to put to
the bifurcating international community (Schabas 2001: 8). Instead Article VI of the
convention provides for justice to be dispensed either in the courts of the country
where the crimes occurred or else in a specially convened international tribunal. The
idea of the ICC did not perish, however, during the Cold War years. The UN’s
International Law Commission (ILC), a body responsible for the codification of
international law, optimistically continued to work on the concept behind the scenes.
When the opportunity then suddenly presented itself at the close of the 1980s the ICC
was able to re-emerge from cold storage. The trigger for the diplomatic process
leading to the ICC’s creation was a 1989 General Assembly resolution (A/RES/
44/39), proposed by the government of Trinidad and Tobago motivated by their
difficulties in dealing with narcotics being smuggled into their country. In 1992 the
General Assembly gave the go-ahead to the ILC to draft a statute for the ICC (A/RES/
47/33), paving the way for the 1998 Rome Conference, at which the statute for the
court was agreed on and opened for signature.
The ICC, in effect, makes a permanent legal mechanism from what has already
operated sporadically under the UN system. The Nuremberg and Tokyo trials, which
prosecuted Nazi and Japanese war criminals in the 1940s, and the ad hoc tribunals
established by the Security Council to try individuals for genocidal crimes in
Yugoslavia and Rwanda in the 1990s, provided the blueprint and inspiration for the
Rome Conference. Though its initial mandate is to act on war crimes, genocide and
‘crimes against humanity’, Article 10 of the ICC treaty permits the evolution of the
statutes in line with the development of customary international law. This potentially
opens the door for filling the glaring gaps in the current means of implementing
global human rights law.
There do exist some quasi-judicial UN mechanisms for implementing human
rights but they are a long way from being courts and are far from global in their reach.
The UN Commission on Human Rights’ record on encouraging the implementation
of the Declaration and Covenants it crafted is, according to the esteemed human
rights lawyer Geoffrey Robertson, ‘woeful’ (Robertson 2000: 45). The Commission,
restrained by intergovernmental politicking, failed even to condemn the 1970s
politicides/genocides in Cambodia and Uganda. The Commission was beefed up in
the 1990s, with the appointment of a full-time Commissioner at its head, but still lacks
any enforcement powers beyond ‘naming and shaming’. Alongside the Commission,
two standing committees were established in the 1960s to monitor the implementation
of the Covenants on Civil and Political Rights and the Elimination of all
forms of Racial Discrimination. The Human Rights Committee (HRC) and Committee
on the Elimination of Racial Discrimination (CERD) have the capacity to take up
individual cases for states who permit this.
Robertson is damning of the impact of these bodies, saying of the HRC: ‘No
one who has visited its offices in a nondescript UN building in Geneva (until 1994 it
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