The Case For a Permanent War Crimes Court

By , and professor of law at Yale University Law School.

ETHNIC cleansing in Bosnia framed the question: Can we prevent genocide and attacks upon civilians and punish the perpetrators?

The UN Security Council tried an ad hoc answer: Create a one-time-only tribunal to try crimes from the Yugoslav conflict. Too soon, the nightmare recurred in Africa, and the ad hoc court's jurisdiction was enlarged to the charnel house of Rwanda.

This summer, UN diplomats will put the finishing touches on a broader gauge strategy to deter humanitarian outrages - creation of a permanent international criminal court. A historic proposal for a permanent court - presented by the International Law Commission - is to be recast in 10 days of top-level intergovernmental meetings in New York this month, before a formal diplomatic conference in 1996 and 1997.

Recommended: The International Criminal Court's docket in Africa

Why permanent? Why not rely on ad hoc courts in the future? The reasons are delay, legitimacy, and needed institutional growth.

The Yugoslav tribunal took two years to become fully operational. UN members waited for months to agree on a prosecutor, a process complicated by unfolding events in Bosnia. Budget approval dawdled. The tribunal's budget was voted by the General Assembly this July, after 26 months of making do, hamstrung by a long debate whether the major powers should pay slightly more. The court is now housed in an insurance building in The Hague. It has heavy security, judges from 11 countries, a newly constructed courtroom with computer displays for the massive documentation of a complicated trial, and a glass dock to keep defendants secure. The court is trying its first case, a Serbian accused of crimes against humanity and war crimes in the Omarska detention camp in Bosnia-Herzegovina.

The newer Rwanda chamber lacks any building at all, and none will be available in Arusha, Tanzania, for nine months.

A permanent court created by treaty would quiet the debate over Security Council authority. The Security Council - an elite institution with greater voice for the superpowers - pushed the limits of its authority in setting up a special court, some UN members say. The democratic process of treaty negotiation would sidestep any doubts about sovereignty.

A court also requires institutional development - for instance, the education of cross-pollinated lawyers and judges, equally at home in criminal law, international humanitarian law, the law of war, and the constitutional law of the United Nations. (Hercule Poirot's investigative instincts must be wedded to the catholicity of a public international lawyer.) This new bar can be developed over time.

Still, the proposal for a permanent court has difficulties that need to be worked out.

A separate mandate to prosecute international drug traffickers is currently envisioned - and could disable the court. The security of informants, undercover agents, and electronic surveillance is hard to protect. Narcotics traffickers know how to corrupt institutions, and without a strong internal audit capacity, this could be disastrous for the UN. National justice systems are already committed to wiping out the narcotics trade. The drug proposal should be dropped.

How to select war crimes cases is the second major problem. An international court is suited to grave and historic cases that will not otherwise be vindicated. The current working draft of the treaty, produced by the UN's International Law Commission, allows any treaty party to bring any complaint and obliges the international prosecutor to open an investigation.

There has to be a filter to sort out meritorious complaints from political gestures and grandstanding. An international war crimes tribunal is not where we should debate the merits of nuclear strategy, or military doctrines of proportionality and winning by overwhelming force.

The basic enforcement of the law of war is through national court systems and national militaries. NATO defense ministries carefully train their soldiers in the law of war and prosecute violations. Professional military lawyers and commanders will not like the idea of internationalizing all these prosecutions.

Internationalizing the docket for genocide and crimes against humanity would not hurt NATO members, but the special elements of proof in those two crimes may be too restrictive for a court facing the bloody incidents of modern civil war.

A workable solution is to require Security Council referral of a matter before the prosecutor can investigate. But countries that do not regularly serve on the Security Council are less likely to favor this.

I would propose, as a possible compromise, that the prosecutor be allowed to make a public recommendation to the Security Council - putting considerable pressure on the council to refer any flagrant case.

A new criminal court should preserve the system of state-to-state cooperation in international cases. Through extradition treaties, police-to-police assistance, and extraterritorial and universal jurisdiction, the US and its allies are able to prosecute many overseas crimes, including terrorism. It would be a pity if an international criminal court provided a pretext for friends, grudging or willing, to cease cooperating in this process. The treaty must preserve the existing network of action against international crimes.

A permanent international criminal court may convene within the decade. For serious war crimes, an international response witnesses the gravity of the situation.

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