US * Edition - Financial Times

Tuesday, June 16, 1998

BEYOND NUREMBERG

Ad hoc tribunals are not enough. A properly constituted International Criminal Court is the best way of dealing with genocide and all other crimes against humanity.

All too often in this bloody century, the law of force has overwhelmed the force of law. All too often, atrocities and impunity have worked in vicious tandem, with each massacre the parent of next. That is why a conference has just opened in Rome to established an International Criminal Court; at long last, we aim to prove we mean it when we say, "Never again."

The road to this landmark gathering has led through some of the darkest moments in history. We have seen the extermination of indigenous peoples and the barbaric trade in African slaves. Our own century has seen the invention and use of weapons of mass destruction and the use of industrial technology to dispose of millions of lives.

Most societies have proclaimed, at least in principle, the need to protect the innocent and to punish those who carry violence to excess. By now, however, the world has realised that relying on each state or army to punish its own transgressors is insufficient. When crimes are committed on such a scale, we know that the state lacks either the power or the will to stop them. Often the worst crimes are part of a systematic policy, and the worst criminals may be found at the pinnacle of state power.

The idea of an international criminal court is not new. After the defeat of Nazism and fascism in 1945, the United Nations was set up in an effort to ensure that world war could never happen again. The victorious powers established international tribunals at Nuremberg and Tokyo, and decided to prosecute Nazi leaders not only for "war crimes" but also for "crimes against humanity".

Was enough to make an example of the arch criminals in two states, and leave it at that? The General Assembly of the UN did not think so. In 1948, the Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide and requested the International Law Commission to study the possibility of establishing a permanent court. In this area, as in so many, the cold war prevented further progress.

We have had to wait until the 1990s for a political climate in which the UN could once again consider establishing an international criminal court. Unhappily, this decade has also brought new crimes. Events in the former Yugoslavia have added the dreadful euphemism of "ethnic cleansing" to our vocabulary. The 1994 genocide in Rwanda has done terrible and irreparable damage not only to one small country but to the very idea of an international community.

These events overtook the slow processes by which the world was considering the creation of a permanent criminal court. Ad hoc tribunals established for those two countries have made important progress, including the milestone six weeks ago when a former prime minister of Rwanda pleaded guilty to genocide. These tribunals are showing, however imperfectly, there is such a thing as international criminal justice and that it can have teeth.

But ad hoc tribunals are not enough. People all over the world want to know that humanity can defend itself that wherever genocide, war crimes or other such violations are committed, there is a court with teeth before which the criminal can be held to account; one that puts an end to a global culture of impunity; one where

"acting under orders" is no defence; and one where all individuals in a government

hierarchy or military chain of command, without exception, from rulers to private soldiers, must answer for their actions. It is shameful that the man who organised the killing of more than 2m people in Cambodia between 1975 and 1978 died without ever being brought before a court for his crimes.

Many conflicting principles and interests will have to be reconciled if we are to create an international criminal court that is strong and independent. Some small states fear giving pretexts for more powerful ones to over-ride their sovereignty. Others worry that the pursuit of justice may sometimes interfere with the vital work of making peace. These concerns must be taken into account and the aim must be a statute accepted and implemented by as many states as possible. At the same time, the overriding interest must be that of the victims and of the international community as a whole. The court must be an instrument of justice, not expediency.

In this year of the 50th anniversary of the Universal Declaration of Human Rights, we have an opportunity to take a monumental step in the name of human rights and the rule of law. Victims of past crimes, and potential victims of future ones are watching us. They will not forgive us if we fail.

The author is UN secretary-general