THE Clinton White House should persuade the United Nations to establish a permanent court for the prevention and punishment of genocide. This could fill a major gap in the law, and it could save lives - perhaps not this year but soon.
Rwanda's massacres remind us that the 1948 Genocide Convention still lacks an established court to decide whether that convention has been violated. Rwanda reminds us that a ``war crimes'' tribunal may lack jurisdiction without a war between established states.
The Nuremberg tribunal was explicit: Individuals could be tried for ``crimes against humanity.'' But Nuremberg also held that such crimes could be punished by an international court only if they took place in wartime or in preparation for war.
The court claimed jurisdiction only over acts committed as part of Germany's aggressive war - not over persecution of Jews and others in peacetime. Had there been no war, no international court could have tried Hitler's henchmen for the Holocaust.
In 1948 the UN explicitly banned genocide - ``people-murder'' - and made it a crime whether committed in war or peace. The UN General Assembly adopted unanimously the Convention on the Prevention and Punishment of the Crime of Genocide (with abstentions by Saudi Arabia, South Africa, and the Soviet bloc). The convention forbids ``acts committed with intent to destroy, in whole or part, a national, ethnical [sic], racial or religious group, as such.'' Genocidal acts are defined to include not only killing but ``deliberately inflicting on any group conditions of life calculated'' to destroy the group. The convention bans genocide, conspiracy to commit genocide, and complicity in genocide. But intent is crucial. Not every mass murder is genocide.
The Genocide Convention makes clear that genocide can't be shielded by claims of ``essentially domestic jurisdiction.'' A party to the convention may call upon UN organs to prevent and suppress genocidal acts. The convention declares that those who commit genocide ``shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals.'' Signatory states are required to pass laws that support the convention.
The convention entered force in 1951. By the 1990s, 110 states had ratified it. But the convention is nearly toothless. It floats in a cloud of hot air because no international court has been set up to hear genocide cases. Who will punish the perpetrators of genocide? The treaty grants jurisdiction to courts in the country where the genocidal acts took place. Thus, Saddam Hussein's actions against Kurds and Shiites should be tried in Iraqi courts! The treaty permits genocidal acts to be tried ``by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction.'' Only if such a court existed and only if Iraq accepted its jurisdiction in advance could Saddam be tried before it.
Weakening the convention further, many signatories have entered all manner of ``reservations.'' The United States did not even ratify the convention until 1988 - eight years after China! Seeking to protect states' rights, Washington entered five ``reservations'' so sweeping that Greece, Italy, Ireland, and Mexico called them ``invalid'' because they violated the convention's ``object and purpose.''
Many jurists say that any state could try a person who commits genocide because it is a crime against humanity - like piracy and skyjacking - and thus subject to universal jurisdiction. Any state may try pirates, regardless of where the act took place. But when Israelis abducted a Nazi from Argentina and delivered him to Israeli justice in 1960, the UN Security Council asserted that Israel had violated Argentina's territorial integrity.
Despite abundant evidence of genocide in Iraq, Iran, Burundi, and Bosnia, governments are reluctant to charge one another with ``genocide.'' They fear a Pandora's Box. Who is to be accused - the prime minister, the field commander, the squad leader? Will top leaders be tried even if they also negotiate a peace treaty? Can't lawyers argue that the accused acted on ``orders'' or in ``self-defense''?
Prodded by reports of ``ethnic cleansing,'' the UN in 1993 launched an investigation into war crimes in the former Yugoslavia and established a special international court to hear such cases. But then the UN emasculated the investigation and the court by withholding adequate funding.
New ethnic and religious fighting plus weapons of mass destruction could escalate the possibility of ``omnicide,'' the killing of all living things. It may be too late to punish genocidal acts that have already taken place. But why not establish a court to hear future cases? The court's existence might be a deterrent. Of course, there are no guarantees. The court might also fail. But if it deterred - or punished - even a fraction of the mass murders now well under way, the expenditure would be a worthy investment. The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.