LONDON — Almost unnoticed by the world’s media, a huge step forward in the pattern of global governance is about to be taken.
The vastly ambitious project, now on the verge of fruition, involves nothing less than the setting up of a permanent world court, with its own jurisdiction rising above all nations, its own judges, its own investigators and prosecutor and its own penalties. It is to be called the International Criminal Court and will be based in The Hague in the Netherlands.
The declared purpose of this revolutionary innovation is to bring to book the perpetrators of the world’s most atrocious crimes, the instigators of genocide and the authors of crimes against humanity and all kinds of war crimes. It will be distinguished from the existing ad hoc tribunal that has been set up already to try war criminals from the Yugoslav horrors, or from the similar tribunal for the recent Rwandan butchery, in that this new court will be permanent. And its role will be quite different from that of the present International Court of Justice, which mostly adjudicates disputes between nations but does not arrest and try individuals.
Moreover the new court’s writ will extend worldwide — not only in those 139 countries that have so far signed the statute establishing it, the so-called Statute of Rome, or in those 30 or so countries that have ratified the statute and incorporated the International Criminal Court’s legislative code in their own national legislation (with many more, including Britain, shortly to come), but everywhere these criminal monsters can be tracked down or where their crimes have been committed.
So who could be against such an obviously laudable set of aims, and against setting up the new court as fast as possible?
Answer: a number of highly important countries that for differing reasons intensely dislike the idea of their own national jurisdictions being overridden and fear the court could become a politically motivated instrument for score-settling and scapegoat-hunting.
If these nonparticipants just included the usual international bad boys — Libya, North Korea, Myanmar and Iraq, for example — who have no intention anyway of cooperating in an international legal regime of this kind — that would be hardly surprising.
But other absentees from the party raise much more profound questions. Neither China’s nor India’s signature is to be found on the statute, nor is Japan’s. As for the United States, although former President Bill Clinton signed the statute as one of his last presidential acts, the Americans show little sign of wanting to ratify or join in the scheme.
On the contrary, leading members of the new Bush administration, from Defense Secretary Donald Rumsfeld on down, have shown a marked distaste for the whole undertaking.
Of course, they want to see international butchers brought to justice. But the idea that U.S. citizens could be whisked out of American jurisdiction and tried by foreign judges on charges that may have been instigated by hostile states for vindictive and vexatious reasons is anathema to many American lawmakers and opinion-formers.
The nightmare scenario rises up before them of ordinary American service personnel, who may have been involved in brutal wars where civilians have been killed (Vietnam or the recent bombing in Kosovo come to mind) being hauled before the new court as war criminals. This could be so even if they were acting under clear orders, or even if they were part of an international “peacekeeping” force. Worse still, their senior commanders, and even the policymaking officials behind them, could all become vulnerable, or so it is feared.
These would be people who in the eyes of their home state had committed no crime, or would have been tried or court-martialed domestically if there was any suggestion that they had.
Yet the new court and its prosecutor, with powers to issue warrants and insist on individuals being delivered up to it for trial, could in theory be driven by quite different attitudes. One country’s necessary war measures, or unavoidable self-defense, possibly bombing a village or moving a local population or attacking a power station or radio station, could be seen from the other side as deliberate and inhuman conduct toward civilians, meriting trial and punishment.
In the words of one leading American official giving evidence to Congress, the effect of the new court could be to “criminalize the use of force in the settling of international affairs” — a utopian aim that could well result in dictators and violent rulers going unchecked or unpunished by any form of retaliation by military means.
The whole approach of the court, say its American critics, confuses international politics with legal matters. Evilly-motivated violence, such as Iraqi President Saddam Hussein’s invasion of Kuwait, will always have to be met by equal force. But if both front-line soldiers and their commanders in the democracies are going to live in perpetual fear of future investigation and possible trial for their war actions, who is going to police the world against tyrants and mad dictators or check their aggression?
The problem is that the Americans have a significant point. And more important still, whether they are right or wrong to fear the power of this new, supranational jurisdiction, their constitution prevents them from allowing the enshrined rights of American citizens to be surrendered to higher authority.
Yet without the U.S., without Japan, without India, without China, the new court will lack all plausibility and credibility. The world’s two biggest economic powers, plus the world’s two most populous states, will not be on board.
In the case of China, that may be inevitable. Who could ever expect the Chinese, under their present rulers, to surrender, say, the perpetrators of Tiananmen Square to an international trial?
But U.S. involvement is vital if the court is to carry any authority. At the moment, the Rome Statute is drafted in such a way as to make full American adherence impossible. And the statute cannot in theory be amended for seven years.
If the International Criminal Court is to be effective and not just prove to be another failed monument to half-baked idealism, something, somewhere, will have to give.
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