“The defects of International Crimes Court”

At the last days in “Shekulli” newspaper’s pages there is published a public debate on International Criminal Court, which will starts its activity on July 1, 2002 in Hague, Holland. Emma Bonino, one of the most well known politicians in Italy, but in the international dimensions by her battles in defence of Human Rights has made the first comment. Mrs. Bonino in a diplomatic language criticised the Albanian State for non-ratification of the Rome Statute (1998), that does establish the International Criminal Court. Genc Burimi has written the second article taking the question: how it can be possible that the Albanian State, the Patria of the all Albanians, who have suffered a lot in this last decade from the massive violation of human rights, could or can not ratify the Rome Statute, which will judge such crimes in the future? M. Burimi does take a doubt, which suppose that USA can influence Albanian State. In the two articles there were made strong critics against USA for the non-ratification of Rome Stature of ICC. But, in the meanwhile the are missing critics in front of ICC and Rome Statute. Which are these disadvantages which can justify the USA attitude of the non-ratification?

In fact the Rome’s Statute of ICC does present some considerable disadvantage, mostly in legal point of views. This is clear and reasonable mostly because the Treaty of Rome there is a product of a political compromise obtained from politicians and not by legal and jurisprudence experts. In the all the 128 articles of the Rome’s Statute approved in Rome’s Conference in 1998 there can not be found “criminal elements” punishable by the International Court. This means that penal acts prescribed by the Treaty of Rome there are too much generally and do give considerable space of miss-interpretation. In practical means, the fundamental principal of the Penal Right, which Latinos do express by “Nullem Crimen, Nulla Poena, Sine lege” (there can be no crime, no punishment, which is not prescribed in law), can not find full execution. This is called the principle of legality and in these countries, (i.e. USA) where the execution of such principle is very strict, the ratification of the Rome Statute will be really difficult because of such defects, which are lots in this Treaty.

I.E. in the Rome Statute by the article 8 there is declared: The Court will have under jurisdiction the war crimes, in special way when they are committed in widely scale”. The question is, which is the meaning of the expression “widely scale”? The Treaty does not give any response. But, the most extreme case is that of the aggression’s crimes against another State. The Treaty is limited in declaring that one of the crimes under its jurisdiction is also the crime of aggression, without giving broader explanation.

In Rome Statute do miss even more other important details. One of these there is the missing of proceeding’s rules and the presenting of evidences. How can it secure to the accused persons the guaranty of a rightful and impartial process with missing of the above mentioned rules? This means that the accused persons who will be judged by ICC will have less legal processing guaranty than those offered in most of civilised countries of the world. I think a Court, which pretend to judge the most decent crimes of the world, an International Court, must be a good example for all other States in execution of such principles of the Penal Right.

As it is evident, the USA has completely right to doubt for such a Court. Meanwhile, I do agree with the fact that USA does not accept the ICC for political reasons. Although, even when these political motives or reasons could not exist and USA could accept the judgement of American citizens accused for international crimes, the doubts for rightfulness of the penal processes would continue to exists.

In the two precedent articles there is evidenced the fact that 60 countries have already ratified the Rome Statute. Although, I would add this process there was difficult (there was needed two years only for 60 ratifications) because the legal critics made by Americans there are done even by other parliamentary members of other countries, which have ratified already. Even the European Union there was not unified for such case. There was done a great tolerance to France which there was concretised in the article 124, which says that a State can refuse the Court competence in relation with crimes prescribed in article 8 (war crimes) for a period of sevens years. Certainly, such tolerance made in favour of France has damaged the Court’s Statute, as long as for a period of sevens years there was left to the free will of countries the cooperation with ICC. Countries which have already ratified!

At last, I would like to remember to readers of this newspaper that Albania has signed in July 18 1998 the Rome Statute of ICC, but has not ratified yet that. Although, the Albanian State can not be started just for political interests to ratify or not the Rome Statute. At last but not least, the crimes against Albanians in Ex Yugoslavia there are punishing with great success by International Tribunal of Hague for Ex Yugoslavia. I would say that it would be in honour of Albanian State that before ratifying the Rome’s Statute, reflect in front of legal disadvantage it presents. I think it would show professionalism by Albanian State in the International aspects. It will show that even Albanians are trying to construct a legal State, where every accused individual for penal acts must have all the possible guaranties for a rightful and impartial process. In this case Albania would give its modest contribution to promote such principles in international penal field.

* Graduate in Political Sciences in the University of Pisa, Italy.