WASHINGTON — Former U.S. Secretary of State Henry Kissinger recently visited Europe and almost ended up in the dock for alleged war crimes committed three decades ago. This preview of the operation of the International Criminal Court, or ICC, a U.N. body ready to go into effect after receiving the necessary 60 ratifications, helps explain the Bush administration’s renunciation of the tribunal.
The desire for international justice is understandable, but foreign relations has never had much to do with justice. Throughout history winners have murdered and oppressed losers, with no pretense of fairness.
The allies tried to do better at the end of World War II, most famously with the Nuremberg trial. Those in the dock were evil, yet sitting in judgment was also the Soviet Union, an early partner of Hitler.
German and Japanese officers were tried for using aerial and naval tactics later adopted by the allies. Moreover, the Nazi leaders were charged for ex post facto international crimes that existed only in the minds of the victors.
In recent years the United Nations created tribunals for the Balkans and Rwanda. Their greatest “success” is the ongoing trial of former Yugoslav President Slobodan Milosevic.
Alas, his arrest was arranged only by bribing the government of Serbian Prime Minister Zoran Djindjic with foreign aid. And Milosevic has proved to be a formidable courtroom opponent, embarrassing the overconfident prosecutors.
Nevertheless, the ICC will begin work on July 1. Michael Posner, executive director of the Lawyers Committee for Human Rights, exults: “Nuremberg was a baby step. This is a major evolution. It is a global court. It has all the world’s great legal traditions. It is permanent. It will change the way the world deals with human rights violators.” If only the ICC would forestall future aggression and murder. But no politician goes to war assuming that he or she will lose.
And the improbable prospect of future punishment by some international body would not likely have forestalled past conflicts. Indeed, the threat of trial is likely to make tyrants fight harder to stay in power.
There is little in past experience to suggest that the ICC will operate efficiently or evenhandedly. Washington has called for closing down the existing tribunals, given the high expense — more than $100 million a year — and lack of professionalism. Moreover, the West’s entire policy in the Balkans has been biased, excusing crimes by Albanians, Bosnians, and Croats while targeting Serbs.
The ICC will also create the temptation to promiscuously charge people with faux war crimes. Spanish High Court Judge Balthazar Garzon asked the international police organization Interpol to question the visiting Kissinger about his knowledge of human rights abuses by Latin American dictatorships while he was U.S. secretary of state more than two decades ago.
British political activist Peter Tatchell applied, unsuccessfully, to a London court for an arrest warrant against Kissinger for having “commissioned, aided and abetted and procured war crimes in Vietnam, Laos and Cambodia.” Earlier Tatchell attempted to make a citizen’s arrest of Zimbabwean President Robert Mugabe for ongoing human rights violations. Belgium, one of Europe’s most inconsequential countries, has even greater pretensions. It now asserts universal jurisdiction over all cases of genocide and crimes against humanity.
Last year four Rwandans were convicted of participating in genocide in 1995. Complaints are pending against Palestinian Authority Chairman Yasser Arafat, Israeli Prime Minister Ariel Sharon, Israeli Foreign Minister Shimon Peres, Iraqi President Saddam Hussein, former Iranian President Hashemi Rafsanjani, Cuban President Fidel Castro, Ivory Coast President Laurent Gbagbo, Rwandan President Paul Kagame, Chad’s former President Hisene Habre, and a host of other current and former officials around the world.
The World Court blocked Belgium from issuing an arrest warrant against a former Congolese foreign minister because he enjoyed diplomatic immunity at the time of his alleged crimes — speeches inciting violence against the Tutsi people. Otherwise, the court ruled, international relations would grind to a halt. But the ruling would not apply to the ICC.
Unfortunately, the U.S., with a global military, political, and economic presence, will always present the greatest potential target for ICC action. Other active industrialized states will also be at risk. Yet decisions by the unaccountable international bureaucracy, in which the most advanced nation has only a single vote, will always be politically driven.
Moreover, the organization’s mandate is expansive, including “outrages upon personal dignity” and “serious injury to mental health.” In the future the ICC’s charter could be amended to cover, say, drug trafficking and environmental crime.
Thugs stained with the blood of the innocent deserve to be punished. But the ICC is utopianism run amok.
It will not deter aggression, murder, or crime. It will pose a constant threat to Americans and other Westerners. Their governments must make clear their intention to protect their citizens at whatever cost.
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