Tuesday, June 30, 1998

INTERNATIONAL HERALD TRIBUNE

EDITORIALS/OPINION

AN INTERNATIONAL COURT THAT AMERICA COULD BACK

By Aryeh Neier

New York - The United States proposes giving the five permanent members of the UN Security Council veto power over prosecutions by an International Criminal Court. At the Rome Conference currently debating the issue, the consensus among proponents of a strong Court is that it is better to go forward without the United States than to buy U.S. participation by accepting that condition.

Just think how the U.S. version would have worked had there been such a Court when the crimes it could prosecute - genocide, crimes against humanity, war crime - were committed in past conflicts.

Russia could have votoed prosecution of Serbs for crimes in Bosnia, or of Saddam Hussein for using poison gas against Kurds. France could have blocked prosecution of Rwandan officials for the 1994 genocide. China could have turned thumbs down on a trial of Pol Pot and his Khmer Rouge colleagues for the Cambodian holocaust. Britain could have stopped the prosecution of Nigerian officials for the Biafra slaughter. And the United States could have ensured that the leaders of the death squads of the 1980s in El Salvador were never brought to trail.

Only defendants from countries lacking a protector among the permanent five would ever find themselves in the dock. In addition, of course, the five permanent members would guarantee their own immunity, so that, for example, the crimes of Russia in Chechnya or of China in Tibet would have been untouchable.

Opposition to the U.S. proposal is so widespread that it has little chance of adoption. Better no Court at all, many argue, than one so fatally flawed.

Still, rather than give up on American participation in establishing the Court, there is one compromise that could be made by proponents of an effective Court which just might bring the United States along.

U.S. efforts to undermine the Court reflect fears in the Pentagon that American troops, who are stationed in many countries, could be subject to politicized prosecutions by a foreign prosecutor before foreign judges.

There are many safeguards against such a possibility, including what is known as "complementarity."

That is, action by the domestic courts of a country would block jurisdiction by the International criminal Court.

An additional safeguard could be provided without significantly compromising the work of the Court. It would involve a provision requiring that prosecutions for war crimes be brought only when such crimes are committed on a large scale or when there is a pattern of such crimes.

Genocide and crimes against humanity, by definition, are committed on a mass scale. War crimes are different. A single murder of a civilian, or a single rape committed in connection with internal or international armed conflict or military occupation, is a war crime. Canada prosecuted some of its soldiers for war crimes for torturing a man in Somalia during the UN military occupation of that country, even though there was no pattern of such crimes.

Awful as such individual crimes are, especially when governments do not follow the Canadian example of prosecuting those responsible, it simply will not be possible for the International Criminal Court to devote its manager resources to such prosecutions.

With more than a score of wars under way in different parts of the world, many of them marked by large numbers of atrocities, the focus must be on crimes that involve many victims.

There will be a cost to a requirement that the Court's jurisdiction over war crimes should be limited to crimes committed on a large scale or as part of a pattern. It will increase the evidentiary burden on the prosecution, making cases more time-consuming and more difficult to prove.

To prevent that burden from becoming too heavy, it should not be necessary to prove that crimes were committed pursuant to a deliberate policy. Obtaining evidence of such a policy will often be impossible. It should suffice for a prosecutor to show that certain crimes were committed repeatedly, or that there were many victims.

There is no way to establish an effective International Criminal Court while giving the Pentagon an ironclad guarantee that American troops would never appear before it. If Americans are again dispatched to combat or military occupation overseas and commit scores of murders of civilians or engage in combat in systematic torture or rape, and no action is taken by the United States to bring them to justice, they could end before such a Court.

But if assuring impunity in such extreme situations is the Pentagon's aim, not many Americans may be persuaded that it is a good basis for sabotaging the International Criminal Court.

The writer is president of the Open Society Institute. He contributed this comment to the Herald Tribune