WORLD CONFERENCE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL TRIBUNAL

2-5 December 1992

Siracusa, Italy

BACKGROUND PAPER

To condemn crimes for which there is no court is to mock justice and encourage criminality.

- Dr. Benjamin Ferencz,

Professor of International Law,

U.S. Prosecutor, Nuremburg War Crimes Trials

March 1989

An effective international legal system must enable people to exercise their human rights, afford protection to those whose human rights have been violated, and consistently bring the perpetrators to account....Those who commit genocide, those who commit serious violations of human rights, must be brought before an international crimes tribunal.

- The Honorable Klaus Kinkel,

Foreign Minister of Germany

Address to the United Nations General Assembly,

September 23, 1992

CONTENTS

INTRODUCTION

AN INTERNATIONAL CRIMINAL TRIBUNAL

HISTORICAL BACKGROUND

Positive Developments in 1992

OUTLOOK: 1945-95

APPENDICES

Appendix A. Crimes Covered in International Instruments

Appendix B. Draft U.N. General Assembly Resolution - 1992

Appendix C. Global Action Programme Activities - 1992

Appendix D. Statements by Global Action Members

Appendix E. Media Commentary on an International

Criminal Court

INTRODUCTION

The World Conference on the Establishment of an International Criminal Tribunal could hardly come at a more opportune moment in history. After years of confrontation and geopolitical paralysis, the opportunity now exists to forge a credible system of international collective security, predicated upon a global regime of binding international law. Integral to any such legal regime is an international criminal court with jurisdiction over individuals who commit international and transnational crimes.

The past year has witnessed startling movement toward the creation of such a court. Galvanised into action by recent international developments - including the Gulf War, the extradition dispute with Libya and the ongoing conflict in the Balkans - more political leaders than ever before have called for an international tribunal in statements to the United Nations and in other fora.

Most recently, the U.N. General Assembly, at its 47th session (1992), has agreed to provide the political mandate for the critical next step in the criminal court initiative. The Sixth (Legal) Committee has just called for the International Law Commission to draft a comprehensive treaty-statute for a court, for consideration by U.N. member states.

Following close upon this turning point at the United Nations, the World Conference for the Establishment of an International Criminal Tribunal seeks to bolster support for the efforts of the Law Commission as its begins work on a draft statute. More generally, the Conference will consider the political merits of an international criminal court, mechanisms for creating such an institution and various obstacles which must be overcome in doing so.

THE NEED FOR PARLIAMENTARIAN INVOLVEMENT

Parliamentarians have a major role to play in efforts to establish an international criminal tribunal. Active support from elected lawmakers is crucial for acceptance, by governments, of international legal institutions. This will soon be evident when the statute for a court is actually adopted, as legislators must 1) ratify the treaty, 2) modify any national laws necessary to make legal use of this new judicial mechanism and 3) provide funding for the tribunal. Parliamentarian involvement in the World Conference will help to ensure that the process now underway will benefit more fully from their input.

AN INTERNATIONAL CRIMINAL TRIBUNAL

The idea of an international criminal tribunal has been under discussion in the world arena for over 50 years. The existence of international crimes logically suggests the need for such an institution. As Hon. John J. Parker, a U.S. federal judge and alternate jurist to the Nuremburg war crimes trials, wrote in 1952:

"The world community has become so integrated and its various nations so interdependent that world peace is endangered by individuals who commit crimes of an international character. The time has come when a permanent international tribunal should be set up to try those who are guilty of such crimes."

The recent increase in and complexity of transnational crimes, including terrorism and drug trafficking, has revived calls for a world criminal court. At present, no international mechanism exists to hold accountrable the perpetrators of international crime. There are compelling arguments for the creation of such a mechanism:

- Establishing an international criminal tribunal would offer a third option for bringing international criminals to justice. In addition to trial in a domestic court, or extradition to another nation for trial - which is sometimes politically difficult or impossible - nations would be able to turn over such criminals to this new court.

Examples:

The inability of Colombia's judicial system to cope with crimes committed by the cocaine cartels, while its Constitution forbids extradition to other states.

The insistence of Britain and the United States, backed by the U.N. Security Council, that Libya extradite its nationals accused in the Lockerbie plane explosion (although this is illegal under Libyan domestic law).

Economic and political pressure applied by France against New Zealand after the conviction of French agents for the bombing of a Greenpeace vessel in a New Xealand harbour.

- The very existence of such a tribunal would have a deterrent effect on the commission of international crimes. The absence of physical sanctions to enforce international law invites the ever-recurring infraction of such law.

- An international criminal court would reduce the controversial nature of individual states exercising extraterritorial jurisdiction with respect to international offenses.

Examples:

Arrest and trial of Manuel Noriega by the United States.

The recent United States Supreme Court ruling which upheld the "right" to kidnap foreign suspects.

- An international criminal tribunal would lessen both the fear of excessive leniency and the fear of denial of due process when "interested" nations take responsibility for international criminal cases.

Examples:

IRA cases, and the judicial response to them, in Britain and Ireland.

The Libyan extradition dispute (as the King of Morocco recently said: "If the accused were judged in Libya, that would not be credible; if they were judged by an American or English, court, that, too, might not seem credible")1.

A world criminal court would prove especially useful in cases where the relevant parties to an international criminal dispute cannot agree upon an appropriate national forum for trial; or in cases where the state having custody of accused persons is under threat (e.g., of further acts of terrorism) if it proceeds with their trial; or where the criminal justice system of a small state is overwhelmed by the magnitude of a particular offence. More generally:

- By bringing the imperative of collective security to the level of the individual, an international criminal court would initiate the development of a new norm in international law: personal accountability to the world community for international crimes.

Example:

Aggression by Iraq under President Saddam Hussein's leadership and the environmental destruction initiated by his military in Kuwait.

- An international tribunal would signal the will of nations to protect fundamental human rights against those who would, through their criminal actions, deny such rights.

Examples:

Genocide by the Khmer Rouge in Cambodia.

Apartheid by former South African governments.

Throughout this century - with the transient exceptions of the Nuremburg and Tokyo war crimes tribunals - the world community has been unable to politically agree on establishing an international criminal jurisdiction. Yet, after every international, regional and sometimes internal conflict, world public opinion has demanded the creation of an impartial judicial body to fairly prosecute those who are responsible for crimes related to these conflicts. Such demands are being made at present, with respect to reported "crimes against humanity" in the Balkans.

While there are legitimate concerns raised by those who oppose the creation of an international criminal court, the obstacles are essentially political. Professor M. Cherif Bassiouni, President of the International Institute of Higher Studies in Criminal Sciences and an expert adviser to Parliamentarians for Global Action, points out that "the real opposition comes from government officials who fear [that they] can be called to answer for acts which may constitute international violations and which may be subject to the court's jurisdiction."2

HISTORICAL BACKGROUND

Recommendations for the establishment of an international criminal court date back to the League of Nations. A special committee of the United Nations was charged with the issue in the early 1950s, but its work was suspended after a few years. At that time, the idea, like many others, was lost to the Cold War.

In 1987, Soviet President Mikhail Gorbachev endorsed the concept of an international tribunal for terrorism. In 1989, U.S. Congressmen James Al Leach (a Global Action Executive Committee member) and Robert Kastenmeier introduced a Congressional Resolution calling for the creation of an international criminal court. Senator Arlen Specter has also actively promoted the issue and, in October 1990, legislation was passed by the U.S. Congress requiring that the United States explore the need for the establishment of an international criminal court and requiring President Bush to report to Congress on the feasibility of establishing such a court.

At the United Nations, the question of a court has recently gained renewed and favourable attention. This was initially due, in the late 1980s, to the efforts of Trinidad & Tobago, which, as a small Caribbean nation, has been besieged by the scourge of international drug trafficking. In a resolution of December 1989, the General Assembly requested the International Law Commission (ILC)3 to address the question of establishing "an international criminal court or other international trial mechanism." This resolution represented the most forthcoming action by the U.N. on this issue in four decades.

Momentum then appeared to flag at the 45th and 46th sessions of the General Assembly (1990 and 1991), with resolutions simply requesting the ILC to "continue to work on the matter." This was largely due to continuing opposition from some of the major Western powers (especially the U.S., Britain and France). Among key nations of the Western Group, Germany emerged as the only strong proponent of an international tribunal in 1991.

POSITIVE DEVELOPMENTS IN 1992

Despite continued resistance from some quarters to the idea of an international criminal court, 1992 has proved a watershed year in the advancement of this initiative. Galvanised into action by the carnage in Bosnia and such high-profile cases as the Libyan extradition dispute, more nations than ever before have publicly supported an international tribunal in their speeches to the U.N. General Assembly, the Security Council and other fora. During 1992, these states have included Australia, Canada, Colombia, Japan, Venezuela, Zimbabwe, and - in a dramatic reversal - the entire membership of the European Community, including Britain and France.

At its 1992 meeting in Geneva, the ILC set up a special Working Group on an international criminal jurisdiction which issued its report on 6 July. This report reiterated the belief of the Commission that an international criminal tribunal is an achievable goal and suggested the following structure for such an institution, at least in its initial phase of operations:

- the court's jurisdiction should be limited to crimes of an international character defined in international treaties;

- the court would not be a standing full time body, but should be an available legal mechanism which can be called into operation when required; and

- the court must guarantee due process, independence and impartiality in its procedures.

The ILC Working Group made it clear that "the phase of preliminary considertion and analysis, called for by the General Assembly in 1989, is completed." Further work by the Law Commission, it wrote, requires a "renewed mandate" from the U.N. - a mandate for a detailed project, "in the form of a draft statute (emphasis added).4 Such a statute would form the basis of a multilateral treaty creating the court.

At the U.N. General Assembly this year, there has been an unprecedented degree of interest in moving forward on the court. Many national delegations - particularly in the Western Group - have come out strongly in favour of a U.N. resolution which calls for the ILC to begin work on a draft statute. The prevailing view was, perhaps, best summed up in the statement made by Britain, on behalf of the European Community:

The European Community and its Member States have, over the years, become increasingly concerned at the frequent and widespread violations of international humanitarian law, including grave breaches of the Geneva Conventions. Moreover, despite existing provisions, including international conventions providing for universal jurisdiction and containing the principle "prosecute or extradite", which enable certain crimes to be dealt with in national courts, we are concerned that these provisions have not proved effective enough....

The Community believes that the [International Law] Commission's request to be given a renewed mandate to draft the Statute of an international criminal court with universal jurisdiction should be accepted. The report of the [ILC] Working Group is a good basis. The renewed mandate should call on the Commission to complete its work in the shortest possible time.

The one major hold-out on such forward movement was the United States, which initially resisted calls for a statute.5

On 27 October, the American representative stated that

given the importance of this subject, the complexity of the issue addressed in the [ILC Working Group] report, and the seriousness with which the report should be taken, in the view of the United States, it is neither necessary nor desirable for either the Sixth Committee or the General Assembly to ask for further work by the [ILC] on the possible establishment of an international criminal court at this session ...

In its counter-offer, the United States proposed

that the Sixth Committee adopt a resolution requesting Governments to provide written comments on the [ILC Working Group] report, and requesting the Secretary-General to circulate those comments for the Committee to consider prior to the [1993 session] of the General Assembly, at which time an informed decision can be made on how best to proceed.

China, Indonesia and a number of other delegations from the developing world also expressed scepticism concerning the court, although most were prepared to see the Law Commission go forward with its work. The greatest obstacle remained American opposition.

Nevertheless, key supporters fo the international criminal court initiative held firm in their positions. Two days after the U.S. made its statement, the German representative spoke:

I wonder whether the world can afford yet another twelve month delay in deciding whether the ILC should continue its work and begin to draft the Court's statute. Our debate here in the Sixth Committee does not take place in a vacuum. The crime we all have in mind when talking about the establishment of an international trial mechanism for, inter alia, the most serious violations of humanitarian law are happening today. The peoples all over the world, not only the victims of such deeds, are expecting a clear signal that the international community is determined not to tolerate any longer the flouting of the most basic norms for the protection of peace and security of mankind...

If some delegations feel that States should be given the opportunity to supply more detailed comments, States should be asked to do so by early next year. That way the [ILC] will be able to take them into account already during its next session.

On 12 November, the U.N. Sixth (Legal) Committee emerged with an historic draft resolution which offered the "renewed mandate" sought by the ILC. The resolution requests the Commission "to continue its work on this question by untertaking the project for the elaboration of a draft statute for an international criminal court as a matter of priority as from its next session." For the full text of relevant portions of the draft resolution, see Appendix B.

OUTLOOK: 1993-95

1993 should prove to be another pivotal year in efforts to establish an international criminal court. The locus of activity will be the 45th session of the International Law Commission, in Geneva, during May, June and July. In response to the U.N. General Assembly resolution of 1992, the Law Commission will begin work on drafting a comprehensive statute for an international tribunal.

At this stage, the most reasonable expectation is that the 48th General Assembly (1993) will receive a "progress report" from the ILC and will offer further guidance to the Commission as it proceeds with a draft statute. Therefore, it is critical that national delegations continue their support for the process, not allowing the statute to be put aside through lack of political will.

Parliamentarians for Global Action believes the time has come for an international criminal court. The drafting of a statute will represent a major step toward realising this goal. Much legal work and political negotiation will remain before the statute is accepted and adopted by states. If the current momentum is maintained, however, a multilateral convention creating the court could be concluded by 1995, or even sooner. Parliamentarians for Global Action intends to play an active role in furthering this momentum.

APPENDICES

APPENDIX A: CRIMES COVERED IN INTERNATIONAL INSTRUMENTS 6

Aggression

War Crimes

Unlawful Use of Weapons

Crimes Against Humanity

Genocide *

Apartheid *

Slavery and Slave-Related Practices

Torture

Unlawful Human Experimentation

Piracy and Crimes on Board Commercial Vessels

Aircraft Hijacking and Sabotage of Aircraft

Threat and Use of Force Against Internationally Protected Persons

Taking of Civilian Hostages

Unlawful Use of the Mails for Violence

Illicit Drug Cultivation and Trafficking

Destruction and Theft of National and Archaeological Treasures

Environmental Damage

Theft of Nuclear Weapons and Materials

International Traffic in Obscene Materials

Interference with Submarine Cables

Falsification and Counterfeiting

Bribery of Foreign Public Officials

CRIMES ENUMERATED IN THE DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND **

Aggression

Threat of aggression

Intervention ("...in the internal or external affairs of a state by fomenting subversive or terrorist activities...")

Colonial domination and other forms of domination

International terrorism

Recruitment, use, financing and training of mercenaries

Illicit traffic in narcotic drugs

APPENDIX B: DRAFT U.N. GENERAL ASSEMBLY RESOLUTION - 1992

Relevant portions of the resolution negotiated by the U.N. Sixth (Legal) Committee, November 12 1992:

REPORT OF THE INTERNATIONAL LAW COMMISSION

ON THE WORK OF ITS FORTY-FOURTH SESSION

The General Assembly,

Having considered the report of the International Law Commission on the work of its forty-fourth session,

Taking note with appreciation of the sections of the report of the International Law Commission concerning the question of the possible establishment of an international criminal jurisdiction and noting the debate in the Sixth Committee pertaining to this question,

1. Takes note of the report of the International Law Commission on the work of its forty-fourth session;

2. Expresses its appreciation to the International Law Commission for the work accomplished at that session;

3. Recommends that, taking into account the comments of Governments, whether in writing or expressed orally in debates in the General Assembly, the International Law Commission should continue its work on the topics in its current programme;

4. Notes with appreciation Chapter II of the report of the International Law Commission entitled "Draft Code of Crimes against the Peace and Security of Mankind", which was devoted to the question of the possible establishment of an international criminal jurisdiction;

5. Invites States to submit to the Secretary General, if possible before the forty-fifth session of the Commission, written comments on the report of the Working Group on the question of an international criminal jurisdiction;

6. Requests the Commission to continue its work on this question by undertaking the project for the elaboration of a draft statute for an international criminal court as a matter of priority as from its next session, beginning with the examination of the issues identified in the report of the Working Group and in the debate in the Sixth Committee with a view to drafting a statute on the basis of the report of the Working Group, taking into account the views expressed during the debate in the Sixth Committee as well as any written comments received from States, and to submit a progress report to the General Assembly at its forty-eighth session;

APPENDIX C: GLOBAL ACTION PROGRAMME ACTIVITIES - 1992

During 1992, Parliamentarians for Global Action has worked intensively to take advantage of the political energy in favour of an international criminal court. The following is an outline of the year's activities:

Development of Parliamentary Network

In January 1992, Global Action's Executive Committee directed the Secretariat to distribute relevant documentation to parliamentarians interested in international law, encouraging them to raise the criminal court issue in their parliaments and with government leaders. A core group of Global Action's parliamentarian members subsequently became active as the organization's International Law "Sub-network". In the past ten months, members have advanced the criminal court issue in Britain, Canada, Costa Rica, Germany, Italy, the Netherlands, New Zealand, Pakistan, Tanzania, and the United States, among other countries. In Venezuela, Global Action's International Councillor has set up a special legislative sub-committee to consider the question of a court (see Appendix C, page 22, for statements by Global Action members).

Parliamentary Delegations

As part of the criminal court project, Global Action mounted two parliamentary delegations to meet with world leaders during 1992. The first, in late March/early April, raised the matter with the Prime Minister of India, the Foreign Minister of Egypt, and Foreign Ministry officials in Austria. The second, in June, travelled through Latin America and the Caribbean. Meeting with Foreign and/or Justice Ministers in Argentina, Chile, Uruguay, Jamaica and Trinidad, Global Action found a clear and deep interest in working with the organization to advance the initiative. The ruling by the U.S. Supreme Court on the Mexican kidnapping case, announced during the delegation, outraged Latin American Governments and served to concentrate their attention on the need to strengthen interntaional legal institutions.

Work Toward United Nations Resolution

In two teleconferences, held in May and June, members of the International Law "Sub-network" recommended that Global Action draft a 1992 U.N. General Assembly resolution, to put before governments for their consideration. This work was undertaken with the assistance of Global Action programme adviser M. Cherif Bassiouni, a distinguished legal expert who was recently named to the five-member commission (established by the U.N. Security Council) to examine reported violations of international humanitarian law in the former Yugoslavia. The central elements of Global Action's suggested U.N. resolution were as follows:

The General Assembly:

1) endorses the creation of an international criminal court; and

2) requests the International Law Commission to draft a statute for such a court.

Since June, Global Action has focused its efforts on winning support for such a resolution, raising the matter directly with government leaders during the above-noted delegations, as well as in numerous meetings with U.N. Ambassadors and their legal advisers in New York. On October 6 - the day that the U.N. Sixth Committee began its debate on the criminal court - Global Action held an informal meeting for Committee delegates to facilitate an exchange concerning the proposed resolution.

Efforts Within the United States

While efforts at the U.N. continued, a Global Action delegation met, in September, with foreign policy advisers to the Clinton campaign to discuss the (now) President-elect's position on the criminal court issue. Global Action's presentation to the Clinton group met with strong interest and the organization subsequently provided the advisers with in-depth background material on the topic, at their request. Then, on October 23, Global Action's Secretary-General, Dr. Kennedy Graham, gave testimony on the court to the U.S. Commission on Improving the Effectiveness of the United Nations, a body established by the U.S. Congress and chaired by Global Action President James A. Leach.

Publication

In October, Global Action published the first in a new series of Occasional Papers, entitled "An International Criminal Court". With contributions by U.S. Congressman James A. Leach and Professor M. Cherif Bassiouni, the Paper provides a detailed examination of the issue, in a format that is useful for parliamentarians with pressing agendas. It is to be distributed, in November-December, to parliamentarians and experts around the world.

World Conference in Siracusa, Italy

On December 2-5, Parliamentarians for Global Action is co-sponsoring a World Conference on the Establishment of an International Criminal Tribunal, to be held at the International Institute of Higher Studies in Criminal Sciences, in Siracusa, Italy. This conference will bring together some 100 political leaders, legal experts from inside and outside of government, and U.N. officials. Participants will focus on the political merits of an international criminal court, mechanisms for creating such an institution and various obstacles which must be overcome in doing so. The gathering, which is also a satellite conference to the 1993 World Conference on Human Rights, will seek to bolster the mandate of the ILC as it begins work on a draft statute for an international criminal court.

APPENDIX D: STATEMENTS BY GLOBAL ACTION MEMBERS

Mr. William Powell, MP: "My right hon. Friend will be aware of how welcome the declaration of the London summit on the conference on Yugoslavia was in relation to the war crimes that are taking place in Yugoslavia and also the subsequent action taking place at the United Nations. Unfortunately, of course, there is no permanent machinery for trying war crimes, although the General Assembly of the United Nations has been discussing such permament machinery. Wiil my right hon. friend encourage his colleagues in the Government to take a more costructive approach towards establishing such permament machinery?"

The Prime Minister (Rt. Hon. John Major, MP): "I am certainly content to give my hon. Friend that assurance."

-Exchange in the British House of Commons

27 October 1992

"In Yugoslavia... (the U.S.) Administration should make it abundantly clear that, rather than military conflict, the law and order we seek for the world should be reflected in the convening of a war crimes tribunal to hold Serbian leaders accountable for their crimes against the peace. As President of an international association of legislators, Parliamentarians for Global Action, I have for a number of years been pressing our government to support and the U.N. to endorse the creation of an international criminal court to hold accountable individuals who violate a spectrum of international conventions.

The genocidialist, the terrorist, the narco-trafficker of any country should be considered the common criminals of all countries. In a present day context, the United States should not shrink from its responsibility to help bring individuals like Pol Pot, Saddam Hussein, and Slobodam Milosevic before the bar of justice."

- Congressman James A. Leach (United States)

Address to the Islamic Leaders Forum on Yugoslavia,

Cedar Rapids, Iowa, 10 October 1992

"An international criminal court would envisage, deal primarily with crimes such as terrorism with transcend national boundaries...

"Persons accused of terrorist acts would be tried by an independent tribunal, free of any question of political bias that inevitably confronts domestic courts attempting to deal with the same crime. The integrity of our legal system would be enhanced, as would our ability to confront the serious problem of terrorism...

"The Unite Nations is currently giving consideration to the concept of an international criminal court. I am promoting the idea in New Zealand, and I hope your governments will also give the matter serious consideration."

- Hon. Paul East, MP (Attorney General, New Zealand)

Speech to the Commonwealth Corrections Conference

of Justice Ministers and Attorneys-General

Harare, Zimbabwe, 11 May 1992

"Madam Speaker, last week I had the privilege as a parliamentarian, representing Parliamentarians for Global Action, to attend a meeting in Italy on a proposal to create an international criminal court... Surely this is an idea whose time has come.

"Take the current problem of the Libyan nationals accused of blowing up western airliners ...Clearly, there is some doubt whether the Libyans could get a fair trial in Lybia and Libya is reluctant to surrender them to a U.K. or a U.S. court. The solution is a world criminal court...

"Madam Speaker, I call on the House to urge the government of Canada to support, at the United Nations Sixth Committee this fall, the proposal for an international criminal court, an idea whose time has come."

- Mr. Ian Waddell, Mp (Justice Critic for

the New Democratic Party, Canada)

Speech in the House of Commons,

3 April 1992

"We are the dawn of a decade which may well witness progress in the attitude of States toward international law. Unexpected changes in the global political environment - coupled with a growing awareness of the need for an international rule of law - offers the opportunity to accelerate cooperation for the creation of an international criminal court."

- Dr. Edgar Ugalde, Diputado (Costa Rica)

from a paper written for Inter-American

Bar Association,

November 1991

APPENDIX E: MEDIA COMMENTARY ON AN INTERNATIONAL CRIMINAL COURT

The New York Times EDITORIALS/LETTERS Saturday, August 1, 1992

THE NEW YORK TIMES

A WORLD COURT FOR DRUG LORDS

A murderous bomb last in Sicily and a jail-break in Colombia send devastating messages, about the inability of governments to control organized crime - and add new weight to the case for an international criminal court.

The bombing in Palermo that killed Paolo Borsellino, an anti-Mafia prosecutor, occurred only two months after the murder of Judge Giovanni Falcone. Both were part of a small group of Italian law enforcement officials working with Americans to prosecute the mob. The assassinations suggest that the Mafia may have embarked on a campaign of violence in order to force the judges and prosecutors to back off.

The Mafia could well be emboldened by events in Colombia. After drug cartels carried on a long campaign of kidnappings and bombings, Colombia's Government promised not to extradite drug-lords to the United States if they would surrender for trial in local courts. The violence subsided and eventually one of the most powerful cartel leaders, Pablo Escobar, turned himself in.

But Mr. Escobar never went to trial. Instead, he persuaded Colombian officials to set him up in a comfortable jail of his own design, surrounded by guards of his own choosing. There he was alleged to have continued directing his drug business under official protection from his rivals. When the authorities sought to remove him to more secure quarters recently, he easily escaped.

The apparent triumph of violence looks all the more ominous if, as some suspect, the Colombian drug cartels are developing an alliance with the Sicilian Mafia to distribute cocaine in Europe.

How to fight back? U.S. and Italian officials vow new efforts; Washington has sent planes to help Colombia search for Mr. Escobar. But there may be crippling limits to any approach that remains only bilateral. The time appears ripe for a future step: setting up an international court where drug traffickers too powerful for any single government might be brought to justice.

Drug trafficking inspires virtually universal international condemnation, and a court set up to try drug cases need not violate any country's sovereignty so long as transfer of a case to the international tribunal remains voluntary.

Still, given the wide differences in legal process and philosophy among nations, creating such a court would be a complex task. An American Bar Association task force report sympathetic to the idea points out that participating countries would have to negotiate jurisdiction, rules of evidence, roles for prosecutors and judges, rights of defendants and appropriate penalities.

Nor would all that work yield immediate dramatic results. Such a court would not address Colombia's primary problem of capturing Pablo Escobar and holding on to him.

At a minimum, however, the mere existence of globally sanctioned judges and prosecutors could provide powerful moral support for governments that now despair of ever dominating organized drug crime. As the traffickers seek extended alliances, an international court would give nations they victimize a way to stand together as well.

NOTES

1 New York Times, 2 March 1992.

2 Bassiouni, M.C. "The Time Has Come for an International Criminal Court, "Indiana International & Comparative Law Review, Vol. 1, No. 1, Spring 1991, at 11.

3 The International Law Commission is a body of International legal experts, representing all the major judicial system of the world, which reports to the United Nations General Assembly. It meets annaully, at the U.N. offices in Geneva, with a brad mandate to encourage "the development of international law and its codification."

4 Report of the Working Group on the question of an international criminal jurisdiction, UN Doc. A/CN.4/L.471, 6 July 1992, at 4.

5 There are fairly encouraging signs that the new U.S. Administration will take a much more positive approach to the international criminal court initiative. In a September meeting

with Global Action, foreign policy advisers to the Clinton campaign expressed clear interest in pursuing the matter (see Appendix C, "Global Action Programme Activities - 1992, " .

6 List taken from Bassiouni, M. C., "A Comprehensive Strategic Approach on International Cooperation for the Prevention, Control and Suppression of International and Transnational Criminality," Nova Law Review, Vol. 15, No. 2, Spring 1991, at 356.

* The 1948 Genocide Convention and the 1972 Apartheid Convention both specifically refer to an international criminal court.

** Developed by the International Law Commission at the request of the United Nations General Assembly, the Draft Code had its first complete reading at the 43rd session of the ILC, 29 April - 19 July 1991.