World Court for War Criminals?
Effort to create an international tribunal pits United States against other nations.
The lion and the lamb may one day lie down together, as the Good Book says. But until that millennial day is realized, the nations of the world will attempt to hold angry lions and poison adders more accountable for the evil they do.
At least that is the purpose of 153 nations now meeting in Rome to create the first permanent international criminal court - an ambitious effort that would help prosecute future crimes against humanity like those in Bosnia and Rwanda. For the next five weeks, dozens of legal teams will put a 173-page treaty under a microscope and debate some 1,700 "bracketed" items in dispute - in hopes of realizing a dream of international justice dating to the Nuremberg trials 51 years ago.
Yet whether the Rome event will bring a concrete breakthrough in justice - or be an exercise in utopian dream-weaving - is unclear. It depends on whether the United States and three other United Nations Security Council members can reach agreement with a group of 46 so-called "like-minded" nations led by Britain and Germany.
The two sides are already trading salvos, with the British press accusing US officials of "weakening" and neutralizing the Rome treaty by insisting that the Security Council have a role in the court - and the US saying the 46 are ignoring "the reality of the world today," as State Department spokesman James Rubin said June 15.
The debate illustrates the complexities and paradoxes of a world no longer neatly divided along ideological East-West lines - and that watched genocides in Bosnia and Rwanda where top criminals are still embarrassingly at large.
The 50 like-mindeds say giving a veto to the Security Council will vastly limit the scope of war-crimes investigations and keep control in the hands of the permanent five. They want an independent prosecutor to examine any case brought by a member state. Without this, they say, episodes like the infamous My Lai massacre in Vietnam could go unpunished.
Members of the Clinton team in Rome argue that the UN charter requires the permanent five to play a role on war crimes. They say that if the US increases its role as a world policeman, the Pentagon will balk if soldiers are more liable to prosecution for doing their job.
They also say a free-roaming prosecutor could be at the beck and call of hostile political influences. Take an absurd hypothetical, one source said: On the verge of airstrikes in Kosovo a UN prosecutor says that President Clinton or top US generals are accountable for any civilian casualties.
"Those who seek to create a theoretical human rights castle out of the court are deluding themselves," says David Scheffer, US special ambassador for war-crimes issues, who is leading the US team in Rome.
"Any prosecutor needs sufficient backing to do their job. That means the major powers must support the tribunal, including the US and [other] members of the Security Council," says Ambassador Scheffer. "Because we don't accept all the proposals of another party does not mean we are hostile. President Clinton has given six speeches supporting this."
The most basic missing ingredient in the proposed international criminal court, critics say, is a credible threat of enforcement - that war crimes will actually be prosecuted. That is one reason they say the tribunal must begin modestly and reflect current structures of international power and governance.
"Separating the tribunal from the Security Council is a way to harass the US and European states and to impede the effective implementation of their foreign policy," argues Paul Williams of the Carnegie Endowment for Peace, who represented the Bosnian government at the 1995 Dayton accords. "Power today is with the five permanent members. It is imperfect, but it works. Any tribunal must reflect the realities of that power."
Other critics say more support of the current UN war-crimes tribunals would show a readiness to genuinely support a permanent tribunal. On June 15 a Bosnian Serb captain, indicted at The Hague for running a prison camp outside the town of Foca, was captured by French and German troops. Yet such arrests must be weighed against earlier decisions by war-crimes prosecutor Louise Arbor to drop 17 indictments against Bosnian Serbs due to a lack of resources.
"How can you have an effective permanent criminal court unless you have an effective ad hoc court?" asks John Heffernan of the International Coalition for Justice, reached by phone in Rome.
Former UN war crimes prosecutor Richard Goldstone of South Africa, however, told Newsday earlier this month that it is "unacceptable that a political body like the Security Council should decide we'll have international justice in the former Yugoslavia and Rwanda, and we won't have it in Cambodia, we won't have it in Mozambique and Angola."
Still, some US officials find it ironic that several nations that tried to block or sabotage the current UN tribunal at The Hague when it was being established in 1992 and '93 are now crying loudly for the establishment of a permanent tribunal.
"Where were they a few years ago?" asks one source close to the Rome team. "Nowhere to be found."
The US position is precariously near the shoals of domestic politics. Sen. Jesse Helms (R) of North Carolina, chairman of the Senate Foreign Relations Committee, has declared the tribunal a "nonstarter." The Pentagon is in a battle with the State Department over the issue; even the State Department is riven with debate about the viability of a permanent court.
Sources in Rome say the US is prepared to alter its position slightly. In recent days, a "Singapore proposal" has been articulated which would allow the UN prosecutor to start an investigation of alleged crimes. Members of the Security Council would then have the power to stop it once it started.