The New York Times

Monday, January 15, 2001

A World Court That Could Backfire

By STEPHEN D. KRASNER

BERLIN- Since last August I have been working at a research institute in Berlin. The institute is located in one of the richest parts of the city, Grunewald, which was home to many Jews before the Second World War. Walther Rathenau, the foreign minister of the Weimar Republic and a leading Jewish industrialist, was assassinated in a place that is two minutes away from my office. I know because there is a small memorial there. The closest rapid transit station to me was the major point of embarkation to the concentration camps for Berlin's Jews. There is a memorial there, too.

There are some quite elderly people around. It is hard not to wonder what that prosperous-looking gentleman sitting on the bus, who could be 80, really did during the Nazi period. Such questions are plausible because, despite the Nuremberg tribunals, many active participants in the Nazi regime were never tried. The Nuremberg trials convicted only a couple of hundred defendants, and other trials a few thousand. As it became increasingly evident that the Soviet Union would pose a threat to the United States, American officials scaled back the war crimes tribunals and sought instead to rebuild the western zone of Germany as a democratic and capitalist polity, a project that was more successful than perhaps any of the participants, German or American, could have hoped. An untold number of Germans escaped prosecution for their wartime conduct, and many survived to live comfortable lives that contributed to the development of a country that has been a pillar of stability and democracy in Europe.

President Clinton's recent decision to sign the treaty to create the International Criminal Court conveys support for a permanent tribunal that would allow judgment of individuals who are not brought to justice in national courts. Would the world really have been a better place had the proposed criminal court - with its broader reach - been in place in the late 1940's? The treaty establishing the court provides for prosecution of individuals involved in genocide, murder, extermination, enslavement, forcible deportation, torture, rape, sexual slavery and enforced disappearance. This is a long list. Would the vigorous prosecution of all those who had participated in these activities in the Nazi regime have created a more democratic and stable Germany, Europe or world?

The fundamental problem with the International Criminal Court is not that it may lead to the prosecution of American servicemen, although this could happen, but that courts are the wrong instrument for dealing with large-scale war, devastation, destruction and crimes against humanity. Judicial procedures are designed to judge the guilt or innocence of individuals, but developing stable democratic societies and limiting the loss of human life require prudent political calculations, not judicial findings.

Judgments about individual guilt can point in one direction, and judgments about political order and the promotion of peace and democracy can point in another. Executing the major leaders of the Nazi regime was exactly the right thing to do. Trying and executing or imprisoning the tens of thousands of Germans who were directly involved in Nazi crimes could have created chaos in postwar Germany and in the rest of Western Europe. Going down that path would likely have made communism look more attractive and led to slower economic and civic recovery.

Most people outside of Yugoslavia, and many within, would like to see Slobodan Milosevic sitting in jail, but attempts to bring even the leader of an abhorrent regime to trial could make it more difficult to promote democracy by making such leaders and their accomplices more desperate to maintain their hold on state power. How desperately would Baby Doc Duvalier have clung to his position, how many more Haitians would he have killed, if he had feared going before an international criminal court rather than knowing he could go to live on the French Riviera? What if Idi Amin had been faced with jail rather than a comfortable life in Saudi Arabia?

Trying the leaders of regimes whose countries have been militarily defeated and occupied is one thing, but the challenge in the contemporary world will more often be to encourage rulers that have violated human rights to make way for more democratic successors. The more such leaders fear prosecution by an international criminal court, the more they will resist leaving.

Judicial processes can most effectively contribute to healing the wounds of the past if they are conducted through national, not international, tribunals, and if they are designed to elicit the truth, as South Africa's was.

When criminal prosecution is pressed without consideration of political realities, the search for justice could hinder democratic rebuilding in war-torn nations. Almost 30 countries have already made the wrong decision by ratifying the treaty on the court (more than 130 have signed). The United States Senate and the new Bush administration should reject this treaty. The impulse to create this court is humane, but the consequences of carrying out its mandate may in fact prove to be destructive.

(Stephen D. Krasner, a professor of international relations at Stanford, is currently a fellow at the Wissen- schaftskolleg in Berlin.)