U.S. chooses wrong side of tribunal issue Americans seems to want a war crimes court for everyone but Americans

July 26, 1998|By Phyllis Bennis

When the final votes were counted on July 17, cheers erupted throughout the conference center looking out on Rome's coliseum. Exhausted delegates burst into tears. A half-century earlier, the Nuremberg tribunals had taught the world that the explanation "I was just following orders" is no excuse for crimes against humanity.

This time, five weeks of onerous diplomatic wrangling were followed by 120 countries voting yes. Only seven opposed. Finally, nations of the world had created an international criminal court that would, if the unthinkable happened again, hold individuals personally accountable for charges of genocide, crimes against humanity, war crimes and aggression.

But when the final vote was counted, while South Africans and Germans and Brazilians and all the others cheered, the U.S. delegation sat silent, stony-faced. Washington's "no" vote had led the seven-country rejection front. (Only Israel acknowledged it had sided with the United States in the secret tally; the other five naysaying countries - Libya, China, Iraq, Qatar and Yemen - were too ashamed to announce their negative votes.)

The International Criminal Court created in Rome is not all it could or should have been. It contains giant loopholes through which a future Pol Pot or Saddam Hussein might avoid the court's jurisdiction. It has yet to define the crime of aggression, what Ben Ferencz, a former Nuremberg prosecutor, calls the "supreme crime." It doesn't specify use of nuclear weapons as a war crime.

But the fact that the court was created at all represents a major global accomplishment. United Nations Secretary General Kofi Annan called it part of "the new diplomacy" at work in the world. It is a diplomacy made desperate by the outbreaks of bitter, post-Cold War strife and the human horror that accompanies it: "ethnic cleansing" and mass rape in Bosnia, and genocide in Rwanda among the most horrific examples.

Ad hoc courts were established to try war criminals from those conflicts. But temporary courts, created by the UN Security Council, are subject to whims of political expedience, so consistency and the rule of law remain out of reach. The Security Council never, for example, created a war crimes tribunal to investigate Indonesian generals responsible for the slaughter of 200,000 Timorese civilians during Jakarta's occupation of East Timor. It never held Argentina's military junta accountable for the tens of thousands of murdered, tortured and missing citizens during its dirty war.

Ironically, the United States backed the creation of the Bosnian and Rwanda tribunals, and claimed it supported a permanent court. When U.N. Ambassador Bill Richardson addressed the opening session in Rome, he said, "It is time that we make real the aspirations of the past 50 years: the establishment of a court to ensure that the perpetrators of the worst criminal assaults on human kind I do not escape from justice."

But when serious negotiations replaced the speeches, Washington played hardball, demanding a feeble court with no independence of action. Poor countries, especially in Latin America, were threatened with cuts in financial assistance if they voted against U.S. dictates. Even Germany, Washington's powerful European ally, was threatened, however implausibly, with a large-scale pullout of U.S. troops from NATO deployments in Europe.

In fact, the court's jurisdiction will be extraordinarily narrow. It applies only where a national judiciary is unwilling or unable to investigate serious charges. (Given the strength and sophistication of the U.S. court system, it's highly unlikely that any American would come before the court.) The international court can investigate only with the agreement of the country of which the accused is a citizen or the country where the crime took place. And the U.S.-dominated Security Council can stop any investigation or trial.

So with all those safeguards, what made Washington so afraid? U.S. diplomats claimed their concern was to protect American troops in far-flung deployments from facing a hostile court filled with Iraqi, Libyan or North Korean judges. But the reality is something different. The real fear in Washington is that the court could become a tool for global opponents of future U.S. military interventions that other countries would view as illegal. Remember the unilateral U.S. invasion of Panama in 1989? Up to 3,000 civilians died so federal prosecutors could arrest Manuel Noriega on drug charges. If such an invasion happened in the future, with aggression recognized by the international crime court as a crime, might the court attempt to investigate a future U.S. president or Secretary of State or Secretary of Defense as an international war criminal?

In the real world, Washington's immense global economic and political power makes such a scenario almost impossible to imagine. But it underlies much of the fear stalking the capital of the world's most powerful nation.

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