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A Forum for International Justice

The builders are busy on the last great legal edifice of the 20th century: the International Criminal Court (ICC).

This century has been the bloodiest and cruelest in human history, and its hecatombs shook the survivors into creating international institutions that would prevent repetition. The League of Nations was a failed attempt, but the United Nations, built on its ruins, expressed the general desire for peaceful solutions to inevitable problems.

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While new international humanitarian law was framed by the military tribunal that tried Nazi war criminals in Nuremberg, the UN expanded the legal framework with treaties outlawing genocide, torture, and slavery. It codified the rights of children and women as well as political and economic rights for all. It established the International Court of Justice to resolve disputes for the former Yugoslavia and Rwanda. These two pick up the Nuremberg principle of individual responsibility for the most grievous international "core" crimes: genocide, crimes against humanity, and war crimes.

The ICC will be the capstone of the legal structure. The Yugoslav and Rwandan tribunals are agencies of the UN Security Council, limited in time and restricted to the mass murders and unspeakable brutalities of those two cases. The ICC is to be permanent; its jurisdiction worldwide. Devised by treaty, it will be fully independent and funded by the treaty partners, who will also elect its 18 judges.

The ICC statute, which will define the crimes that will come before the court, its functioning, and its relation to the justice systems of individual nations, has been under intense discussion for years. It is now in the home stretch.

The fourth of six preparatory committee meetings was held in New York this month. Next June, a conference of governments in Rome will debate the draft their governments' legal experts have progressively refined, containing bracketed, unagreed provisions and options. Open still is the issue of compelling nonsignatory states to surrender those accused of core crimes.

The work in hand is like building a medieval cathedral, an aspiration in stone, that's to be sound, serviceable, and lasting. Swarms of artisans are putting the statute together, reconciling and amalgamating different codes of law and differing views of fair trial. The latest preparatory meeting engaged as many as 100 governments as well as some 300 nongovernmental organizations (NGOs). The latter included large and influential ones like Amnesty International and the Lawyers Committee for Human Rights as well as local groups from dozens of countries. If the Nuremberg list of crimes against humanity is expanded to include systematic rape, degradation, and abuse of children, it may be largely the NGOs' doing.

NO government openly opposes a court of law that can try and punish those responsible for grave breaches of humanitarian law. But sovereign states jealously guard their prerogatives. The ICC will confine itself to the core crimes - possibly adding aggression - and to the major criminals who managed the machinery of massacre, ethnic cleansing, and systematic rape.

It will not deal with mafia-type organized crime, drug trafficking, or terrorism, which will be left with the Paris-based International Criminal Police Organization and national courts. Nor will it supercede national trials, stepping in only when national courts are unable or unwilling to pursue criminals. In fact, according to one expert, it is designed to encourage a worldwide ethos of capturing and putting on trial such offenders as brutal concentration camp guards and sadistic paramilitaries. The ICC will not make arrests - that, as well as its power of subpoena and investigation, will depend on the cooperation of participating states.

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The United States, with profound worldwide responsibilities and military commitments, does not want its officials and soldiers to be harassed by abusive litigation. It is inclined to limit the way proceedings can be initiated before the court - by doing it, for example, through the United Nations Security Council where it has a veto. However, others demand an independent prosecutor who can investigate, indict, and bring a suspect to trial.

In order to simplify and speed approval of its statute, the ICC will be barred from reviving old cases. Saddam Hussein, Pol Pot, and those responsible for the tragedy of Chechnya will go unpunished - at least by this court. But the active prospect that those who launch new waves of ethnic cleansing and mass extermination face retribution may, to a degree, deter them.

* Richard C. Hottelet, a longtime foreign correspondent for CBS, writes on world affairs.

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