The New York Times Op-Ed

Saturday, May 29, 1999

Truth With Consequences

By Jon O. Newman

(Jon O. Newman is a senior judge of the United States Court of Appeals for the Second Circuit).

Hartford - The International tribunal's indictment of Slobodan Milosevic, whatever its intrinsic merit, reveals a serious flaw in the way we prosecute war crimes: no political body supervises the decision to bring criminal charges. This same flaw will exist in the proposed permanent International Criminal Court, whose treaty was approved last summer in Rome by 120 nations.

Whenever any official is given prosecutorial power, a choice must be made. The prosecutor either has complete independence or is subject to some degree of political oversight. Complete independence has an understandable allure - partisanship will be reduced.

Yet the Milosevic indictment forcefully reminds us that some law enforcement decision may adversely affect public policy. The timing of this indictment according to some critics, might cloud the prospects for a diplomatic solution to the war in Yugoslavia.

The decision on whether and, especially, when to prosecute can be extremely sensitive. Imagine a Federal prosecutor's having to decide whether and when to seek indictment of a person who is holding hostages and threatening to kill them. Most people would expect that a prosecutor's decision would take into consideration the best way to end the standoff. The prosecutor would not necessarily promise the hostage-taker full impunity, but would consider how the timing and type of charges would affect the crisis.

Before the treaty for a permanent International Criminal Court was negotiated, a group of jurists and scholars, including Gabrielle Kirk McDonald, the president of the current temporary tribunal, and Louise Arbour, the tribunal's prosecutor, met to consider the proposed court. Some argued that the prosecutor should have complete independence; others of us argued that he or she should have a degree of political supervision.

In the end, the group reached a consensus, favoring modest political supervision by a small executive council of 9 to 17 representatives of treaty nations. The prosecutor would have authority to begin an investigation with publicly available information, but could not issue subpoenas without notifying the executive council. Any investigation could be discontinued or deferred if a majority, or perhaps a supermajority, of the council voted to do so.

We thought an executive council was a sensible compromise between the demand for a prosecutor's total independence and the demand that the prosecutor be under the control of the United nations Security Council, where any prosecution could be stopped simply by the veto of one major power.

Unfortunately, when the treaty was being negotiated in Rome, complete independence for the prosecutor prevailed. This decision makes it less likely that the major powers, including the United States will ratify the treaty. It is not too late to amend the Rome treaty and create some way of reckoning with diplomatic realities.

Indeed, the indictment of Mr. Milosevic could have an unexpected benefit. It might be an object lesson in the perils of making global law enforcement decisions without giving public policy makers some voice.