U.S. must lead way on international justice

May 24, 2002|By Louise Branson

WASHINGTON - Scenario: A former U.S. defense secretary is captured as he vacations in China. He is taken to the International Criminal Court (ICC) to face charges of commanding atrocities in Afghanistan in 2001. He joins dozens of U.S. soldiers and peacekeepers already hauled into the dock and facing years in jail.

Sound far-fetched?

Not if you listen to the many proponents of a resolution passed by the House on May 10 barring cooperation with the ICC that begins operation July 1 in The Hague. Such nightmare visions also caused the Bush administration to nullify the U.S. signature on the 1998 Rome treaty creating the court (though the United States never ratified the pact).

Is America over-reacting? Yes and no.

The ICC is a terrific idea. It is intended as a permanent body to try those who commit crimes and atrocities, from dictators like former Yugoslav and Serbian President Slobodan Milosevic to much lower-level individuals who escape justice at home.

Two temporary international courts are trying crimes in Rwanda and the former Yugoslavia. The United States was instrumental in setting up and financing them. Initially, it applauded the idea of a permanent international court of justice.

Its about-face has angered much of the rest of the world, including the European Union, which notes that without the United States, the court will have trouble gaining force and respect (even though 60 nations, as required, have ratified the treaty creating it). Critics charge America is a hypocritical unilateralist that wants other countries to cooperate in its own war on terrorism but will not take part in anything it doesn't control.

The creators of the ICC went out of their way to answer U.S. fears that U.S. soldiers on peacekeeping duties could be frivolously accused of war crimes. Or that senior U.S. officials could face charges brought by any number of America-haters.

For example, the court only will try cases that cannot be dealt with by the defendant's own country. But it will not allow the Bush administration a blanket exemption for Americans, even though the president could revoke that exemption.

Still, Washington is right to be leery of the ICC.

One only has to look at the current Milosevic trial for a case study in exposing potential flaws. Among them: The courts do not have their own police and rely on member nations for everything from arrests to evidence; the judges and prosecutors tend to be unfamiliar with the countries and cultures of defendants; and a wily defendant like Mr. Milosevic, acting as his own lawyer, can turn the courtroom into a stage for farce, polemic and intimidation.

The courts have also tended to further divide the populations in Yugoslavia and Rwanda. Rather than facing their own history, many see only victors' justice.

Another plausible U.S. concern is that the court could become a version of the United Nations, which often has become a forum for virulent anti-Americanism.

The Economist magazine argued in its April 13 edition that the Bush administration should set aside its doubts, join the ICC and work from within. But there may be a better way to address American fears and create an international justice system with more chance of working.

First, the United States should not treat the ICC as if it were radioactive. It should recognize that questions of justice cannot be divorced from the reality that the United States is the sole superpower engaged in a global war in which its brand of democracy is supposed to trump terrorism. Washington has partly acknowledged this with its contortions over how to treat the Taliban and al-Qaida prisoners at Guantanamo Bay.

But it should go further and take its own lead on this issue, and set up its own international body, perhaps a judicial form of the International Monetary Fund.

Such an organization could have the kind of financial strings attached - like withholding U.S. aid - that have proved successful, for example, in persuading governments in the former Yugoslavia to send suspected war criminals to The Hague.

It could involve international judges and lawyers working with American counterparts.

The new organization could even be based in Washington and be affiliated with the ICC, perhaps eventually integrating with it.

The point is that the United States needs to be proactive, not reactive.

The war on terrorism and America's superpower status need another component - imaginative leadership to win the peace, not just the war.

Louise Branson, co-author of Milosevic: Portrait of a Tyrant (Free Press, 1999) is an independent journalist based in Washington. She is a former Balkans correspondent for London's Sunday Times.

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