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This Is What Justice Looks Like

For most of history, the law wasn't strong enough to bring to justice those who killed, raped, or tortured thousands. By 1999, people were ready to change that. But first they would have to overcome the opposition of the world's sole superpower

On August 17, 1999, when I arrived in Dili, the capital of East Timor, it was Indonesian Independence Day. But hardly anyone was celebrating.

The Women's Caucus for Gender Justice worked long hours in Rome to include acts of systematic sexual violence--including rape, sexual slavery, forced prostitution, forced pregnancy, and forced sterilization--as war crimes. Photo by Elaine Harvey

The pretty town, like a Portuguese fishing village set down in the South Pacific, was hot and pale at midday. The red and white Indonesian flags hung limp above empty sidewalks and streets. Indonesian army trucks, UN vehicles, motorcycles, and a few cars stirred up a floury dust that hung in the air. A few people went about their business, drying coffee beans in the streets, following after two or three goats, carrying bundles of water spinach on their heads. But they were quiet. Wary. Because in East Timor, fear hung in the air with the dust, and people were right to be afraid.

In 1975, Indonesia invaded the tiny Portuguese colony of East Timor. During the next two years, 100,000 people died from war and famine. After that, paramilitary gangs, supplied by the Indonesian military, roamed the hillsides, kidnapping, torturing, and killing supporters of the independence movement.

By 1999, nearly a third of the population was dead—more than 200,000 people—and no family was left unscarred. Then suddenly, in May of 1999, after a quarter century of violence, UN Secretary General Kofi Annan brokered a deal with Indonesia that allowed the East Timorese to vote. The choice on the ballot would be affiliation with Indonesia or independence.
So UN-certified election observers, like me, began to arrive, stepping off planes, boats, and buses into what is called a “culture of impunity”—a place where there are no consequences for terrible crimes, where violence is part of the landscape.

“Here's the market, where the militia attacked and three people were killed,” our guide told us on a quick orientation trip around Dili. “Over there's the Santa Cruz churchyard where Indonesian troops fired on people attending a funeral and killed at least 271. Here's the bus stop for the UN office. Be careful—someone fired into the people waiting for the bus yesterday.”

“And see that building over there?” Our guide pulled up to our headquarters and pointed to a peeling, cinderblock auto garage not far from us. “That's where they bring people to torture them.”

What, there? Right down the street?

I had thought that people would be taken to remote, hidden places to be tortured—not to ordinary, squat, cement-block buildings in pleasant residential neighborhoods. I had thought that torturers would be afraid of getting caught.

I was wrong, of course. In East Timor I learned the terrible mathematics of impunity: The fear of getting caught is in inverse proportion to the number of people you kill. When a few people are tortured and killed, there is a shrill outcry, the German poet Bertolt Brecht observed. But when a thousand people are tortured, or a hundred thousand, a blanket of silence spreads.
So it has been in East Timor, Germany, Rwanda, the former Yugoslavia, Nicaragua, Cambodia, the Sudan, and a thousand other places where people live under this terrible equation, where they are routinely tortured and killed in garages just down the street.

But by 1999, the people of the world had already begun to change the equation.

The long, dark road to Rome
A year earlier, on June 15, 1998, government delegations from 160 nations poured into Rome for the opening of an intensive five-week negotiating session. They would attempt to create a permanent international criminal court where anyone guilty of the worst crimes—crimes against humanity, genocide, war crimes, aggression—would be held individually accountable, even heads of state. If the delegates succeeded in creating the court by the deadline of midnight, July 17, the people of the world would take “a monumental step in the name of human rights and the rule of law,” UN Secretary General Kofi Annan told them in the opening session. If they failed, he warned, future generations would not forgive them.

Unfortunately, the odds favored failure.

The starting point of the negotiations was a complicated 120-page draft statute hatchmarked with points of disagreement so bitterly contentious that they had remained unresolved in the two years of negotiations. Resolving them now would be an unrivaled feat of diplomatic agility and stamina: negotiators would have to balance 160 sets of competing national interests and the same number of legal systems, and juggle the agendas of a thousand nongovernmental organizations—all the while defending the goal of equal-justice-before-the-law against an end-run by the court's most powerful opponent: the United States.

It didn't help that several generations of advocates before them had already tried and failed to establish a court. In 1872, Gustav Moynier, one of the founders of the International Red Cross, proposed creating a court to consider the crimes committed during the Franco-Prussian War. That idea went nowhere. In 1919 a court was again proposed. It was never established. Then, after World War II, the Allies set up the Nuremberg and Tokyo tribunals to try Axis war criminals. But, critics noted, these tribunals were seriously flawed: they were temporary, established only after the crimes had been committed, and limited in jurisdiction. They also dispensed a sort of “victors' justice,” offering the winners of a conflict a chance to punish the losers. Then in the 1950s, the icy standoff between the US and Soviet Union froze efforts to establish a court for nearly 50 years. In 1993 and 1994 the Security Council again found it necessary to establish temporary, limited tribunals—this time to address the atrocities in the former Yugoslavia and Rwanda.

As the bloodiest century in human history drew to a close, historians began to total up the casualties. The numbers were shocking: 86 million civilians killed, most of them women and children, in 250 conflicts. Few of the perpetrators were ever brought to justice. Historian Eric Hobsbaum called it “the Age of Massacre.”

In response, the persistent vision of an international criminal court was resurrected once again—not by governments this time, but by the citizens themselves.

Civil society draws its own line in the sand
And so it was not just governments that came to Rome in the summer of 1998, but civil society, primarily in the form of the Coalition for the International Criminal Court (CICC), a tightly organized, politically savvy group representing more than 1,000 nongovernmental organizations (NGOs) worldwide.

While the official government delegations divided into working groups and hammered out compromises, more than a thousand representatives of the CICC worked round the clock to speed up the negotiations. NGO representatives like Canadian M. Elaine Harvey, a retired math teacher and Unitarian Universalist who co-led the Faith-Based Caucus in Rome, and John Washburn, co-chair of the Washington Working Group on the International Criminal Court, worked behind the scenes to facilitate negotiations. They observed meetings both mornings and afternoons, then worked late into the night writing objective analysis, position papers, and reaction papers. Because of the Coalition's reputation for high-quality expertise, governments eagerly used these documents. This strategy promoted access for the NGOs; in turn, the facilitative role played by the NGOs made it possible “for governments to know enough, to cover enough, to focus enough to bring off the statute,” Washburn said. In many cases, NGOs helped broker compromises and find ways out of impasses.

As the weeks passed, the outline of the International Criminal Court began to take shape. It would be strong and independent—but it would step in only when governments lacked the ability or the will to prosecute. Housed in The Hague, it would have jurisdiction over the worst crimes—war crimes, crimes against humanity, and genocide, and eventually, aggression. It would investigate and prosecute individuals responsible for these crimes both in countries that are party to the treaty and, with the approval of the Security Council, those that are not. Its 18 elected judges would represent 18 different nations, all the principal legal systems of the world, and an equitable mix of geographic areas and genders. They would be empowered to impose not only large fines and prison terms of up to 30 years, but also reparations, which could include rehabilitation, repatriation, historical clarification, and memorials. And the for the first time, acts of widespread and systematic sexual violence—including rape, sexual slavery, forced prostitution, forced pregnancy, and forced sterilization—would be considered war crimes and crimes against humanity, thanks to the work of the Women's Caucus for Gender Justice.

This court, it appeared, would not be just another declaration of high-sounding principles. It would have big, sharp teeth.

That's why US Senator Jesse Helms, the court's most outspoken opponent, described it as “a monster.” And that's why the US insisted that Americans be immune to prosecution by the court.

The US demands immunity
Why should Americans be exempt? Because, the United States argued:

  • The US, as the only remaining superpower, is called upon more often than other countries to supply peacekeeping troops to hotspots and is therefore more vulnerable to politically motivated charges.
  • Americans have a right to the highest levels of due process protections.
  • The US insists that it has the sovereign right to try its own citizens when they commit crimes abroad.

The other countries attempted to address US concerns. “They were so anxious to see the US be a party to the statute that they were willing to give quite a bit,” Harvey said.

Because it is designed to complement rather than replace national justice systems, the statute virtually eliminates the risk of politically motivated prosecutions. A prosecutor may indeed be willing to take a look at allegations about American behavior. But even before the prosecutor can conduct a field investigation, the US can go to the court and ask to handle the matter itself. Under the statute, the court would have to grant the request—not only at that point in the process, but at other points as well.
In response to US concerns about defendants' rights, negotiators included in the Rome statute the most comprehensive list of due process protections anywhere, according to the American Bar Association, spelled out in greater detail than those in the US Constitution.

What about the US “right” to try Americans who commit crimes abroad? The US never had that right, Washburn points out. “If you go to France and commit a crime there, the French courts try you, not the American ones.”

How, then, can the United States justify immunity for American criminals?

It can't, according to American Pam Spees, director of the Women's Caucus for Gender Justice. “There are no grounds for unequal treatment before the law.”

In a chapter she contributed to the forthcoming book Rule of Power or Rule of Law?, Spees chronicles US efforts to block the court. First the US pushed to divert the issue to the International Law Commission, which “is well known for its snail-like pace.” Then, when it appeared that a treaty was likely, the US “tried to ensure as strong a role as possible for the Security Council,” where the US has veto power, and sought “a procedural and/or jurisdictional scheme that would, in practice, leave US nationals outside the court's reach.”

“I think it's shameful,” Spees said. “It's very disappointing and disillusioning to see how far the US will go to rope itself off from the jurisdiction of the court on really baseless grounds.”

The miracle of Rome
“Often in life you don't realize you're going to have a big moment until it's on you,” Washburn said. “But I knew as I went to bed on the night of July 16th that the next day was going to be one of those high points.”

The day of the vote was warm and sunny, but few of the delegates noticed. In the stuffy conference rooms of the UN Food and Agriculture office, they were barraged with last-minute problems. The first was a practical problem—it appeared that the Secretariat of the UN simply could not produce a document in six languages that was coherent enough for the conference to adopt. And there were still a number of difficult last-minute compromises to be worked out.

“Above all,” Washburn said, “there was the anticipation that the US and possibly other countries would demand, at the last minute, text changes that would make adoption impossible.”

But one by one, as the day wore on, the obstacles were overcome. Somehow the document was produced—not perfect, but good enough. The remaining compromises were struck. At 7:13 p.m., the Committee of the Whole was convened in the Red Room.

“So there we were,” said Washburn. “A few last-minute items were taken care of right there on the floor.” Then, as many had feared, two motions to change the text of the statute were introduced, one by India, one by the United States. The US moved to require a state's consent before its nationals could be tried by the court. “That, in most people's view, would have gutted the court,” Washburn said.

What now? No country wanted to confront the United States.

Minutes ticked away.

Norway moved that these two motions be set aside without being acted on.

Now, would other countries support Norway?

More minutes ticked away.

Other countries did support Norway, and the Indian motion was set aside. Then the US called for a vote on its own resolution.
“The results were painfully slow in coming,” Washburn said, “because people had to put their hands up and tellers had to make their way through each section of the auditorium where the delegates were seated and take a manual count. The suspense mounted and mounted in the hot, stuffy, crowded room.”

Finally, the vote was announced: 113 to 17, with 25 abstentions. The US motion had been soundly defeated.

“Almost all of the people in the room were men,” Harvey said, “Very sedate normally—they would not clap, they wouldn't show any emotion. But that night it was different.”

“The room erupted in cheers, tears, stomping, clapping, embraces,” recalls Washburn, “and this just went on and on and on and on and on for about 20 minutes. It was an extraordinary, vivid moment. An epiphany.”

In the middle of the jubilation, the American delegation sat stone-faced in their seats.

“Many have thought that this was a kind of gleeful gloating over the discomfiture and humiliation of the United States,” Washburn said. “It wasn't. It was a moment of celebration that this extraordinary achievement had happened.”

American NGO representatives felt a confusing mixture of emotions, Washburn said. “We felt both the same exhilaration that everybody else did that the court was safe, and a terrible sense of sadness for our delegation and shame for our country.”

At 10 p.m. the plenary was convened to vote on the statute itself.

Harvey watched as Ambassador David Sheffer, head of the US delegation, cast his vote against the Inter-national Criminal Court. “I saw him put his finger on the red button and I must say—this is just my opinion, now—that it wasn't done with a lot of determination. I suspect that in his heart he felt pretty sad about having to do that.”

And so the International Criminal Court was born on July 17, 1998, at a few minutes before midnight, by a vote of 120 in favor, 21 abstentions, and 7 votes against the court, including the United States.

“There are very few moments when something almost 100 percent good happens,” Washburn said. “Unfortunately because of the limited media coverage in the US, Americans have not had a good sense of how terribly important this was to peoples elsewhere.”

Ending the Age of Massacres
President Clinton reluctantly signed the Rome treaty, obligating the US not to undermine it. But George W. Bush “unsigned” the treaty on May 6, 2002, in a historically unprecedented move. Instead, he signed the American Service Members Protection Act, which authorizes the use of military force to liberate any American or citizen of a US-allied country being held by the court. (Other countries call it “The Hague Invasion Act”). It also threatens the withdrawal of military aid from any country that ratifies the Rome treaty. The US continues to pressure other countries to sign bilateral agreements that provide immunity for US military personnel and peacekeepers. Fifteen countries have signed these agreements so far, but only three have ratified them.

In the meantime, the International Criminal Court is up and running. Its jurisdiction began in July 2002, the election of judges takes place in February 2003, and it will begin investigating and trying cases this year.

Will the International Criminal Court change the world?

Perhaps it will indeed be the monumental first step that Kofi Annan envisioned, out of the Age of Massacre into the rule of law. Or perhaps the court's most important role will be that of bearing witness, telling us a truer version of the truth than we have ever had before, as John Washburn imagined.

Of maybe the court will mean nothing more than this: in some towns and villages throughout the world, garages are garages again, full of bicycles and cars, and the torturers are the ones with reason to be afraid. '


Carol Estes, former managing editor of YES!, is co-founder of Estes Media, a film production company. 

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