Make Law, Not War

Ray Jenkins

November 03, 1990|By Ray Jenkins | Ray Jenkins,from the evening sun

THREAT OF WAR aside, a perceived benefit of the Persian Gulf conflict has been the emergence of the United Nations from ignominious impotence into a plausible force. Granted, the world organization continues to rely on the United States and a small handful of volunteer allies to enforce its resolutions aimed at curbing Iraq's Saddam Hussein, and even in this new age of cozy detente, Mikhail Gorbachev continues to oppose the use of military force unless it is truly a U.N. force.

But the most recent U.N. action is in some respects the most promising: This week the collective nations of the world, speaking through the Security Council, put Saddam on notice that once order is restored, he and his henchmen just might be put on trial as criminals.

Like so many U.N. resolutions, that's easier said than done, but we must state a goal before we can get there.

There are two problems with bringing Saddam Hussein to the bar of international justice. First, there really is no such thing as an international criminal code. Second, the established mechanisms for dispensing international justice are frail indeed.

Still, there are bases for bringing charges against the Iraqi criminals. There are treaties and conventions, some of which Iraq has signed, which commit nations to a course of conduct. There are precedents, the most notable being those developed at the Nuremberg trials which followed World War II. And there are a few written codes, like the U.N.'s Declaration of Rights -- a widely ignored statement which, nevertheless, is gaining grudging acceptance as a kind of international common law.

As for a forum, there is the International Court of Justice in The Hague, a tribunal of 15 judges from throughout the world but whose authority and jurisdiction is vague, tenuous and generally lacking an enforcement mechanism.

Aside from the World Court, another possibility would be an ad hoc court similar to that assembled at Nuremberg in 1946. From a practical standpoint this would be the more credible because such a court could draw heavily upon the law of the region, including Islamic law.

Possibly the biggest obstacle to the development of legal procedures and mechanisms to deal with international criminality the traditional reluctance of nations to yield any ground to their "sovereignty." But one authority, Christian A. Herter Jr., who is a professor of international law at Johns Hopkins School of Advanced International Studies, expressed hope in an interview this week that the world eventually must accept a legal order.

"The world is moving more and more away from the old nationalism whereby the individual country has total sovereignty," he said. "It seems to me that international mechanisms will become more important, because problems can no longer be solved by individual countries." He mentioned damage to the sea and to the environment as examples. After all, the fallout from a nuclear accident like Chernobyl does not respect national boundaries.

Herter believes that, in large part because of Mikhail Gorbachev's relentless insistence on using law instead of force, within 10 or 20 years legal mechanisms might be in place to try international criminals.

It might even come to pass that every tinpot dictator will begin to feel the fear of the law. A big problem, of course, is getting your hands on the scoundrels. It is disgraceful that the United States often seems so eager to bring about "peaceful change" that we guarantee a life of luxury to such ruthless dictators as Marcos of the Philippines, Duvalier of Haiti and Stroessner of Paraguay as a device to "buy peace" by persuading them to leave their countries. Never mind that they usually depart with their own enraged citizens in hot pursuit; too often they leave on an American plane headed for exile in such disagreeable places as Hawaii or the French Riviera.

What could be more appropriate than to establish instead a kind of international Devil's Island -- and populate it by the likes of Marcos, Duvalier, Stroessner and Saddam Hussein. What could be more chastening to an incipient dictator than the prospect of one day joining that unseemly gang?

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