The Globe and Mail

Opinion

Tuesday, July 14, 1998

PEACE AND JUSTICE

Can a world court provide both?

Negotiating the abyss between war and peace has never been easy - in practice or theory. Just ask the delegates at the UN conference in Rome who are trying to hammer out a workable treaty to establish a permanent International Criminal Court. They have agreed on the crimes: genocide, crime against humanity, war crimes and aggression. The means is proving more difficult. After nearly five weeks, they still seem stuck between absolutists and pragmatists, between those who believe in the ancient proverb: "Let justice be done though heaven should fall," and those who agree with the late Martin Luther King that: "Peace is more important than justice." The answer will likely fall somewhere in the middle.

The Nuremberg and Tokyo Tribunals after the Second World War set a precedent for dealing with atrocities committed under the guise of war. Instead of seeking revenge against the German and Japanese people, the Allies convened a court to prosecute individual leaders for crimes against humanity and aggression. Justice was not only done, it was seen to be done. Those found guilty were punished and the proceedings formed a permanent record of the nature and extent of the crime. Nuremberg is one of the reason that we know the Holocaust cannot be denied.

Nuremberg worked largely because Germans had unconditionally surrendered. Most conflict in the latter half of the 20th century have not always resulted in such clear-cut winners and losers. Prosecuting crimes against humanity may work in theory, but in practice, particularly in cases of domestic strife, many countries have preferred the more pragmatic goal of reconciliation.

Perhaps the most important question is whether the threat of prosecution might temper aggression in the future? That is one of the abiding missions of the treaty-makers in Rome. The ideal might best be served if the ICC came under the jurisdiction of the United Nations Security Council, which would decide which crimes to prosecute on a case-by-case basis. Countries could continue to resolve their internal conflict through negotiated settlements, amnesties and variations on South Africa's Truth and Reconciliation Commission. These domestic remedies would not preclude the World Court prosecuting in the most egregious cases. The late dictator Pol Pot in Cambodia might be a suitable example. However the court is constituted, it cannot be an end in itself. Rather it must be the beginning of an international community that respects the rule of law, a world in which tyrants and mass murderers are not tolerated.