A First Step Toward an International Criminal Court

By , William J. vanden Heuvel, an international lawyer, was deputy US Permanent Representative to the UN. Russell M. Dallen Jr. is senior fellow at the United Nations Association of the USA.

IN the violent wake of the Rodney King verdict, the American justice system has received international scrutiny. Critics used the King case to argue that our legal system may not be as fair as we Americans would like to believe. Libyan leader Col. Muammar Qaddafi used the occasion to dramatize his point: If an incontrovertible video could not lead to an obvious verdict, how could the Libyan nationals accused by the United States government of the terrorist bombing of Pan Am Flight 103 over Lockerbie, Sco tland, possibly hope for a fair trial in an American court?

Many friends of the US question the neutrality of our criminal-justice system, especially in cases with a significant political dimension. If we want to bring the Lockerbie terrorists to justice, the US should support the establishment of an international tribunal to hear the case, thereby reaffirming our commitment to the rule of law as the foundation of a new world order and establishing a precedent that could lead to an international court to which the United Nations Security Council could refer appro priate cases.

The American government has always urged the acceptance of the rule of law, objectively defined and fairly administered, as the basic premise of a world seeking peace and social justice. The trials of war criminals in Nuremberg and Tokyo after World War II were an effort to punish crimes against humanity that transcended national frontiers.

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From its earliest days, the UN discussed the creation of an appropriate tribunal for such crimes. Since 1951, the US has been among the countries that have supported "A Draft Code of Crimes Against the Peace and Security of Mankind." The cold war prevented the adoption of such a code, however.

Then in 1987 Soviet President Mikhail Gorbachev announced support of the concept of an international criminal court. The next year, the US Senate called upon the president to begin discussions with other countries toward establishing such a court with jurisdiction over international terrorism and drug trafficking. Last March the Senate called for Saddam Hussein to be tried before an international court.

President Bush and Secretary of State James Baker III have brilliantly won UN affirmation of our indictment of the alleged Lockerbie terrorists. The civilized world now shares our insistence that the responsible criminals be prosecuted and punished. If we were to agree to an appropriate international forum rather than a national court for the prosecution of the case, the Libyans would be compelled to submit or else face international sanctions.

The situation is at a stalemate. Libya is not going to deliver its citizens to the hostile control of the US, Britain, and France. Colonel Qaddafi promised that his government would deliver the accused men to an international tribunal established by the UN. The US has taken the position that there is no present international criminal court with jurisdiction and no imminent prospect of one being created.

But what if we proposed that the Security Council, taking note of the heinous crime, established an ad hoc tribunal to hear the evidence in the Lockerbie case and decide beyond a reasonable doubt whether the accused men committed the crime? Each member of the Security Council would be asked to appoint to the tribunal a distinguished jurist experienced in criminal law. All questions of evidence and procedure would be decided by the presiding justice, designated by the Security Council.

There are certainly notable citizens of the world whose personal commitment to fairness and justice would enable them to deliver a verdict that would command international acceptance and respect. The US, Britain, and France should prosecute the case and absent themselves from the judging tribunal, recognizing the conflict of interest. The accused should be represented as they decide, with Libya bearing the cost of the defense.

There are implications of state-sponsored terrorism in the Lockerbie tragedy. It is that aspect of the case that compels UN involvement. We risk alienating the extraordinary support we have organized for our demand for justice in the Lockerbie case by refusing to recognize the real doubts that our demand for national jurisdiction has aroused among honorable colleagues.

A "decent respect for the opinions of mankind" should remain the guiding light of our approach to the UN.

By establishing the tribunal, the Security Council will have defined the Lockerbie tragedy as a criminal violation of international law. In the operation of the tribunal, much will be learned that can guide the UN toward the creation of a permanent court of criminal jurisdiction. The US, Britain, and France, demanding justice for the victims of Lockerbie, will have a forum to present their case. Libya will have an opportunity to defend its citizens in a courtroom where the verdict will not be controlled by the prosecutors. The UN will have the opportunity to take a giant step toward a world governed by the rule of law.

If guilty, the accused will be sentenced as the law of the sovereign prosecutors commands. The tragedy of Pan Am Flight 103 cannot be undone, but the sacrifice of innocent lives can at least have a larger meaning by making clear that the world recognizes the horror of the crime and has sought justice in a manner that may help future generations live in a better world.

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