The Toronto Star

Friday, January 5, 2001

INTERNATIONAL COURT GETS A BIG BOOST

Should have been if the majority had not tried to placate American concerns

Jonathan Power

Bill Clinton sprang a surprise, but Ehud Barak sprang an even bigger one when, as the light was just about to be turned off at year's end, both announced that their governments were signing the treaty creating a permanent International Criminal Court.

It had been the stand against the treaty by the world's superpower and the state founded by victims of the worst crime against humanity that had done the most to undermine the court before its work had begun. That China and India and assorted other malcontents, such as Libya and Iraq, had not voted for the treaty in Rome at the founding diplomatic conference in 1998 was less significant; 120 other nations had. But the U.S. and the Israeli vote against seemed to many to have stripped it, on the one hand, of a true global reach, and, on the other, of unblemished moral purpose. This was to exaggerate - all the other NATO countries were behind it and the Israel of Binyamin Netanyahu was a pale shadow of the idealism of the founding fathers. Nevertheless, their absence cut a hole.

Even though Clinton's signature comes with no promise of ratification by

Congress in the immediate future - "it will be dead on arrival" is the promise of Senator Jesse Helms, the influential chairman of the Senate's Foreign Relations Committee - it will give a fillip to the pace of ratification by the 60 countries necessary to bring the court to active life. And, once that happens, it will be interesting to see if there's a decline in number of future leaders the likes of Augusto Pinochet, Saddam Hussein, Pol Pot and Slobodan Milosevic.

The court has no retroactive powers so it is only the world of the future that will concern it. Thus, it will take the best part of a decade before we can get a proper reading on its effectiveness. And, even if in 2011, we find that we live in a better world, there will, no doubt, be many other claimants for the progress made. The U.N. becoming more robust? Western nations coming to their senses and deciding to tightly control the export of armaments and the import of illicit funds into their banks? Or just simply the rapid extension of democracy, already expanding with some impetus?

Yet the rapidity with which the idea of a court has moved forward since the end of the Cold War suggests that there is a widespread and powerful urge not just to establish it but to make it work.

The idea for a world criminal court first surfaced when the League of Nations in 1937 published a draft statute for a court to try international terrorists. This helped lay the foundations for the Nuremberg and Tokyo war crimes tribunals that tried the war criminals of World War II. And they, in turn, inspired the passing of the 1948 Genocide Convention, which made a passing reference to the need for an "international penal tribunal."

But the idea then lay dormant for the best part of half a century. At the end of the Cold War, it was President Mikhail Gorbachev of the Soviet Union who brought the idea back to life when he suggested the need for an international criminal court as a measure against terrorism. Then, in 1993, the U.N. Security Council decided to create the ad hoc tribunal for war crimes in ex-Yugoslavia and the concept took wing again. The General Assembly of the U.N. asked the International Law Commission to set to work to create a statute for a full court and the draft was delivered in 1994. The U.N. worked at breakneck speed to produce an agreed treaty in only 27 months. The U.N. and its member governments had Amnesty International, Human Rights Watch and, by the end, a total of another 800 human rights orientated organizations on their back. Never in the world's history has non-governmental activism been so effective or fruitful.

The abiding irony of the exercise is that Clinton, who has now given the court an almighty pat on the back, was the same person who gave the order in the final days of the deliberations in Rome to vote against the court's creation. It was also the same Clinton who gave the U.N. the impetus two years earlier to go full speed ahead with the drafting of the statute. What changed was the Pentagon's influence upon him. The Rome conference came at the time when he was in danger of being toppled by his sexual peccadilloes with Monica Lewinsky. The Pentagon, neurotically fearful that the court would be used to harass it and undermine it, seized its moment and lobbied successfully for an American vote against. Indeed, Secretary of Defence William Cohen was emboldened to threaten Germany and South Korea, two stalwart supporters of the treaty, with a pullout of U.S. troops.

The fight left its scars - a treaty that is not as strong as it should have been if the majority had not tried to placate American concerns, only to have America vote against it anyway. Arguing as if the U.S. is above international law, the Americans managed to insert into the treaty wording that requires a state's consent before one of its nationals could be prosecuted. The court, as it stands, now can only override a state by a vote of the U.N. Security Council. Ironically, this is more likely to favour Russia and China than the United States. It is they who have much more to hide.

The hope is a future more co-operative relationship between the U.S., Russia and China will avoid such stalemates. In fact, that is not such a bad outcome and is, perhaps, the unavoidable way such an important international institution has to work. What still hangs in the air, however, is whether president-elect George W. Bush will decide to live with Clinton's decision to sign or whether he will work to override it.

Jonathan Power is an international affairs writer based in Britain.