U.S. Wants a World Court Without Teeth

In all likelihood, the participants attempting to establish an International Criminal Court will end their five weeks of negotiation this week with a treaty for a permanent tribunal to try war criminals like the late Pol Pot and Radovan Karadzic. However, there is the risk that after arduous deliberation and international effort, the delegates will walk away with nothing.

If the U.S. continues to side with Syria, India, Pakistan and Iraq, rather than longtime allies like the United Kingdom, France and Canada, the court will be stripped of its integrity and become a weak, crippled institution that hardly resembles the ICC originally envisioned. Or, if the U.S. is defeated by its Western allies who are adamantly insisting on an effective court, the ICC may proceed without the world’s sole superpower. Without U.S. support, the ICC will still exist, but there will be questions about both the court’s role and the U.S. commitment to international standards of justice and human rights.

This predicament can be summed up as a choice between two unattractive alternatives: a court with no clout or a court with only a limited constituency.

Considering the 50-year history of the ICC evolution, it is a tragedy for the court to meet such a fate. At the close of World War II, the Allies established the Nuremberg and Tokyo tribunals to try war criminals. Both the U.N. Charter in 1945 and the Genocide Convention in 1948 included provisions for a criminal court. Unfortunately, squabbling among the Cold War powers prevented the creation of a court and atrocities continued to go unpunished in locales like Cambodia, Iraq and Algeria. Now the world is finally taking steps to preserve global justice by pursuing war criminals. Individuals who rape, murder and torture others on a broad scale would no longer be immune from the rule of law.

Today, President Clinton and Secretary of State Madeleine Albright praise the notion of an international court, but they would allow policymakers at lower levels to undermine the effectiveness of the final product by loudly proclaiming the need to preserve our sovereignty.

The court’s detractors rationalize their view by claiming existing ad hoc tribunals can serve the same purpose without infringing on national sovereignty. However, if countries defend the functioning ad hoc tribunals, why should they object to a permanent court that would achieve the identical goals more cheaply and swiftly and whose sheer existence could provide an invaluable deterrent?

The Rome conference provides the U.S. with the opportunity to help craft a workable treaty that will discourage genocide such as that which clearly occurred in Yugoslavia. Unfortunately, up to this point, U.S. diplomatic efforts have been lackluster at best. Our leaders must reconcile their public support of the court with the views expressed in Rome by negotiators representing them. They should take advantage of this opportunity to make our policy objectives not only reflect our moral condemnation of genocide, war crimes and crimes against humanity, but also our willingness to both deter and punish offenders.

The U.S. continues to advocate positions that hamper negotiations and detract from the overall effectiveness of the final treaty. By requiring a country that has already ratified the treaty to grant consent for an individual citizen to be prosecuted for either war crimes or crimes against humanity, the U.S. is basically empowering Saddam Hussein to veto his own trial. States will be allowed to opt out of investigations of heinous mass crimes. At this critical moment we must send a powerful message so that in the next millennium, war crimes will no longer be tolerated.

Detractors claim that giving the ICC absolute jurisdiction over war crimes and crimes against humanity takes liberties with international law. These parties suggest that we lack a foundation upon which to build an international criminal court. The Rome conference is making great strides in precisely defining genocide and war crimes, and a ratified treaty will provide a foundation on which to achieve still future progress. The ideas laid out in the Declaration of Independence never could have been achieved had the founders claimed that the Constitution could not draw on such abstract notions as equality, freedom and the right to representative government. Instead they used such spacious concepts to erect a structure that has lasted for more than 200 years.