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Thursday 31 July  
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The Hague, Netherlands
The Hague, Netherlands

Dutch Series – Part II (The Coup) ‘Total football’ for the International Criminal Court

Published on : 18 July 2012 - 1:58pm | By International Justice Tribune (Photo: RNW)
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The Dutch look back with nostalgia every few years to the 1970’s, when the legendary Dutch soccer squad won major honours by developing a style of play called ‘total football’. They swaggered onto the field and swamped the opposition. Dutch diplomats did the same during the ‘90’s, playing host to the International Criminal Court (ICC).

By Janet Anderson, The Hague

More than a little luck was involved in this quiet diplomatic coup. The playing field was tilted in favour of the Dutch due to the historic role they had been playing in the peace and justice field since the early 20th century (see Part 1). A confluence of world events gave governments and NGOs the opening they needed to establish the court. And a discreet diplomatic campaign provided the Dutch with a hat trick in the final.

The Hague, without brackets
Second day of the Rome conference, in July 1998. The Hague was the only candidate included in Article 3 of the ICC’s potential treaty. By general acclamation, the brackets around the city’s name were removed. Dutch Foreign Minister Hans van Mierlo got the news on his way home from a meeting in Dublin and his government plane erupted with cheers. He proceeded to Rome and “met up with us at around six/seven at a Via Veneto outdoor bar,” recalls Thijs Büchli, a Dutch Foreign Affairs official who ran the campaign for the ICC seat. And with typical Van Mierlo generosity, “drinks were on him.”

The next day, the Dutch held a vin d’honneur—“an opportunity to act as true ICC hosts for the first time,” says Büchli. Intended as a booster for their bid for the seat, this became a celebration. Former Mayor of The Hague, Wim Deetman, who co-hosted the reception, had been thinking about what to give the fellow delegates. “You can’t give something expensive,” he said, “but it must be original and in The Hague there’s not much industry.” In the end, local sweets - Haagse Hopjes - were handed out. “Unique in the world!” according to Deetman.

Commentators date the idea of a permanent international court to a variety of starting points: The Hague peace conferences at the end of the nineteenth century, academic papers during the 1920’s and the Nuremberg and Tokyo trials. In the early 1950’s a draft statute for a court was prepared under the auspices of the UN but was blocked by the Cold War. In June 1989 the Non-Aligned Movement held a meeting in The Hague, sparking a UN-backed decade-long celebration of international law, culminating in the Centennial anniversary of the 1899 Peace Conference in The Hague (see Part-I, IJT-154).

With the end of the Cold War, “there was a new ‘fin de siècle atmosphere’ at the UN,” says Büchli - the idea that “peace could be ‘arranged’ by international involvement.” William Pace, head of the influential lobby group, Coalition for the ICC, argues that “the vacuum caused by the end of the Cold War” left the UN to fill a gap in global leadership. The Security Council, at the start of the 1990’s, struggled with how to deal with the Balkans atrocities. The US launched the idea of a tribunal, as “a desperate hope to impose some measure of justice on the apocalypse,” writes David Scheffer in ‘All the Missing Souls’. In 1993, under US and French leadership, it took only a matter of weeks for the Security Council to agree on the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), and to ask the Dutch to host it.

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The ICTY, a turning point
“That was the turning point,” says Peter van Krieken of Webster University. “Once we had the ICTY… [the ICC] was a race that could be much more easily won.” At the municipality of The Hague, staff were constantly on the lookout for new organisations to headquarter in the city. Bob Lagerwaard, the city hall’s man who coordinated international campaigns, describes the 1990’s as a ‘renaissance’ for the city. Buoyed by their first major success, the Organisation for the Prohibition of the Chemical Weapons in 1992—against stiff competition from Geneva and Vienna—the team continued to look for new projects.

The ultimate prize started to emerge in 1995 when an ad hoc committee was established by the UN’s sixth committee—dealing with legal affairs—to negotiate a potential draft for a putative ICC. Without delay, a new campaign group was formed by the municipality in parallel, to bring the ICC to The Hague. The next year, legal adviser at the ministry of Foreign Affairs Adriaan Bos was nominated to chair the UN committee—known as the PrepCom. Bos was well known and respected in legal circles in New York.

Three campaigns in one
“A careful strategy was developed,” according to Lagerwaard. Plans would culminate in the Centennial celebration of the 1899 Hague Peace Conference. “A huge event,” recalls Wim Deetman, involving 10,000 NGO delegates. Cleverly the Dutch planned to “interlace” the Centennial with the campaign to host the ICC, says Büchli. “Sometimes both campaigns—ICC and Centennial—were almost a co-production with the NGO community,” he said. And on the diplomatic front, “it was an ideal story to ask [our] ambassadors to promote with foreign governments.” Instructions were sent out to promote The Hague as a consistent host of international peace conferences, courts and tribunals over one hundred years.

Again, the ‘total football strategy’ was on. For a while, it even seemed that the Dutch might frustrate their own ambition to host the ICC by overplaying their diplomatic hand. They were also lobbying for a non-permanent Security Council seat. But according to instructions approved by the Minister, the two campaigns—ICC and UN seat—“were not to be run simultaneously and not at the same level,” says Büchli, “so as not to allow any state to pick the ICC seat bid and be let off the hook in supporting our Security Council candidacy.”

Taking the heat off the ICC campaign actually tipped the balance in The Hague’s favour, preventing any competition from coming out in public. The ICC negotiations were played out within the circle of legal advisers and diplomats who did not seem to have competitive agendas. Neither did they seem to need much convincing of The Hague’s pre-eminence in hosting international courts. As a result, two early ICC potential host candidates—Geneva and Vienna—withdrew from the race on the advice of their legal teams.
Another potential competitor—Rome—was seen off via a deal “in the corridors of one of the working groups of the PrepCom at the end of ‘96 or early ’97,” says Büchli, where the Italians switched to proposing themselves as hosts of the conference. “The Netherlands would support the Rome conference and the Rome statute, while Rome backed the Netherlands’ seat campaign.

The only opposition we feared,” he says, was from Nuremberg, which saw the ICC as a permanent successor to the Nuremberg Tribunal. But the German Chancellor’s office overruled the Foreign Ministry and put Germany in the Dutch corner.
Professor Willem van Genugten, who advised the Foreign Ministry in the run-up to Rome, sums it up. “For many diplomats it was already quite clear relatively soon that The Hague would be the core competitor and as you know diplomats and government leaders don’t like competition if there is a big chance that they will lose the game.” Van Mierlo had told staff that he preferred presenting an unopposed bid. “We were able to report an internationally unopposed candidacy in mid-spring ‘97,” recalls Büchli.

The Dutch made their bid public in September 1997, when Foreign Minister Van Mierlo addressed the UN General Assembly. Behind the scenes, civil servants started working out what exactly they would offer. In January 1998, the Dutch funded an extra PrepCom meeting in Zutphen in the east of the Netherlands, to clinch their position as hosts and hold “discussions on and a tour of possible sites for the ICC seat,” according to Büchli. Jaap Ramaker, then Dutch Ambassador to the UN, was able to offer ten years’ free rent for the ICC when he addressed the PrepCom in April 1998.

Post-Rome, the Dutch could quietly celebrate their diplomatic triumph. The prospect of an actual ICC seemed relatively far off—at least 60 countries had to ratify the statute. “We thought it would take ages for it to start working” says Professor van Krieken. “It took me and most of my colleagues by surprise when four years later we had the required number of ratifications,”—especially considering massive American opposition to the court. The crunch came sooner than expected, in 2002. The ICC was born, and suddenly the Dutch had to deliver on a range of sketchy promises (read Part III).
 

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