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J. Enkhsaikhan: How a Small State Views the International Criminal Court
Written by Jargalsaikhany Enkhsaikhan, Ambassador, Permanent Mission of Mongolia to the United Nations
Tuesday, June 18, 2002
Presented at an International Symposium on The United States and the United Nations: Governance and the Challenge of Contemporary Crises, June 18-19, 2002
The question of the ICC and the level of US support is becoming a very important issue, not only in the United States but also internationally because the ICC was conceived and supported by the United States. And the United States has participated in each and every stage of its negotiations, starting in the 1950s, the 1960s, the 70s, the Preparatory Commission, and so on. What the international community is trying to do is to make sure that there will be rule of law and that there will be also punishment for those who have been perpetrating international crimes.
We have heard others describe the US position at this stage. But I know many lawyers and politicians who also disagree. I am sure that you will agree to the extent that all NATO US allies have joined the ICC, have ratified it. There are differences in opinion. I am sure that it will take some time. I am also sure that each International Criminal Court when it comes into force and begins its reparations will show whether the ICC would be seen as an instrument of one group of states that would use it as a legal means to prosecute individuals of other states or not. Time will show us what will happen and how it will develop in the future.
Having said that, I would like to add the perspective of a representative of a smaller state, of how small states see the International Criminal Court. I would agree that ICC is not a perfect document, not for the US, and not for many many countries, because it is in fact a product of long negotiations and of compromise. What we, the representatives of smaller countries, are not happy about concerning the ICC Statute is that it does not, for example, reflect the crime of aggression. Most of the smaller states have been and might become victims of a crime of aggression, and unfortunately during negotiations it was agreed because of the stance of some greater powers that perhaps war crimes should not include at this stage the crime of aggression. Maybe in seven years’ time, we will be able to agree on a consensus definition of aggression. And if two-thirds of parties, state parties to the statute, would vote in favor, and if seven-eighths of the member states at that time would ratify it, it might become a part of international criminal law.
We, as representatives of smaller states, believe that it makes the International Criminal Court very weak because we believe that aggression has been and still is one of the core crimes that you can see in international relations. The representatives of small states tried to include “aggression” in the code, in the statute since the 1950s and the 1970s also, while the International Law Commission was drafting the court of offenses against the peace and security of mankind. But as a result of negotiations, the smaller states thought that they should not insist on something that the largest countries are not prepared to accept at this stage. And the smallest countries thought that it would be better if, even with its weaknesses, the International Criminal Court should be established. That is the only reason why we did not insist on having the crime of aggression included in the statute of 1998.
The second problem that we have is that the statute does not cover the use of nuclear, biological, or chemical weapons. That means weapons of mass destruction are excluded from ICC’s jurisdiction. We believe that it is a very big minus for the International Criminal Court.
The third one deals with the exclusion of environmental crimes from the statute, crimes that can have long-lasting and devastating effects on the environment and human health. You might ask what Mongolia has to do with that. Well, if you look at the map you will see that we are situated between two nuclear powers. The question of nuclear waste is still a big question, not only for our neighbors, but also even for the United States, which has the best of technology. But still the question of nuclear waste has not yet been resolved.
That is why since the 1970s we have been trying to convince the international community to also include at least the grave crimes of environmental nature reflected in the statute. It did not materialize, and I believe there are many other deficiencies you can find in the statute. For example the penalties, even communicative penalties, are not severe enough in my opinion to really deter a prospective perpetrator of international crimes. So there are many problems, but despite that we believe that since it is a product of negotiations it is a compromise, and that it is better to live with that compromise and work further to improve the statute when the time comes, let’s say in seven years’ time, when the states would be allowed to look again at the statute and its provisions.
We believe that the seventeenth of July 1998 is a landmark because 120 states voted in favor of the statute despite the deficiencies I have pointed out. Today the overwhelming majority of member states, of the international community, have signed, and, as it was pointed out, 68 countries have already become parties to the statute. We believe that the first step has already been taken and that it will take time, and perhaps the functioning of the court will show that it is, has been created, to fight international criminals with impunity and to try to bring the perpetrators to justice. We believe that once it is established it will mark a giant step forward in the process of strengthening international legality.
We should remember that until 1945 there was no notion of international criminal justice. We can remember in 1918, when 800 thousand Armenians were massacred, there was no question of justice, no question of retribution. During World War II, 6 million Jews were massacred, and so on and so forth. I think the list is long and I can even find instances when many other countries, many other peoples, have suffered but nevertheless not many people know about it. The Nuremberg and Tokyo international military tribunals were the first steps to create such a court. But then it was interrupted by the Cold War and Cold War rivalries, and only later was the international community able to continue it again in the early 1990s after the tragedies in Srebrenitsa, in Rwanda, and in many other places. The other places saw crimes on a smaller scale, but nevertheless crimes have been committed. So we believe that ICC is a logical step toward institutionalization of international criminal justice.
My country has signed the statutebecause, as I have pointed out, despite the weaknesses in the statute, we believe that the creation of the International Criminal Court is a milestone that opens up the way to bring to justice the perpetrators, or future perpetrators, of international crimes. As a small country, we were during the twentieth century a target of aggression on a number of occasions, encroachments that led us to try to escape the bear hug.
In the 1930s we became part of the Soviet bloc and as such we were forced to follow Soviet policies, looking at everything as a class struggle. We had a policy of genocide imposed upon us at the end of the 1930s. One out of ten persons in Mongolia was subjected to genocide, and there has been no punishment even until today. Now the present government is trying to deal with the question to make sure that the families of those who fell victim would be compensated, but that is, I would say, something that should have been done before.
In our neighboring country to the south, the Cultural Revolution between 1966 and 1976 led to hundreds of thousands of people perishing. Again, it was done with impunity. One of the reasons we are becoming party to the ICC is that we have some hope that the ICC would be able to deter—if not prevent, at least deter—the commission of such or similar crimes not only in our neighborhood but in the world at large.
I would say that there are two general misperceptions about the ICC at this stage. Some believe, without reading the statute or understanding it fully, state that the ICC would be a supranational court, which is not the case. The principle of complementarity mandates that precedence is given to national courts, and only in cases where national courts are unable to deal with the issues or unwilling to act will the International Criminal Court be invoked.
The second misperception, I believe, is that we are living in a realistic world and as a result cannot consider the ICC as panacea for international crimes. I am a lawyer myself and, having read the statute a number of times, I believe that most of the apprehensions that the US government has or US lawyers have could be taken care of within the present statute. Of course, there is the question of uncontrollable prosecutors, which is theoretical. I suppose the US could say yes in one instance the prosecutor might not be controlled, but I believe that if you read the statute carefully you will see that it is not the prosecutor but perhaps in one exceptional case the pretrial chamber that might not agree with the verdict or with the decision of a government, in this case perhaps even the US government. But otherwise most of the apprehensions or concerns of the United States have been taken into account, and I would say largely reflected in the statute. I believe that except for that one case the US could feel quite comfortable if it becomes party to the statute of the International Criminal Court.