Are War-Crime Courts Forever?

If sleep could be dreamless, Happy Mutesi's nights might be a little more restful. But for Ms. Mutesi, darkness ushers in images of David, her three-year-old nephew, killed during the 1994 genocide in Rwanda.

The sole survivor in her family, Mutesi came to the US for medical treatment. Now living in Loma Linda, Calif., the nursing student has become one voice among many victims of war crimes urging the international community to establish a world criminal court.

"In 1994 I was a student in Rwanda. I was just learning some English and I was in a dance class," says Mutesi. "Then the war came so I decided to go to a Catholic mission with other Tutsis, my sister, and her baby. The Hutus came. I hid in a bathroom. I heard gunshots and crying. I think about little David every day. Some of his killers are still free. They must be put away."

The United Nations has set up ad hoc international tribunals to prosecute alleged war criminals from Rwanda and the former Yugoslavia. Yet, many in international circles say the time has come for a permanent international criminal court. Momentum for such a court has increased this past year among politicians and human rights organizations around the world.

The idea for a court first took root after World War II during the war-crimes trials at Nuremberg. But lack of political will, and the onset of the cold war, stymied further efforts.

More than 250 conflicts and some 150 million victims later, the UN clearly must do something, says Benjamin Ferenz, who was a prosecutor at Nuremberg.

"I came in on this show 50 years ago," says Mr. Ferenz. "We are trying now to close a gap in the international law. After World War II we heard, and we keep hearing, 'Never again.' That promise has yet to be redeemed."

Ferenz's 50-year wait may soon end. Last week, delegates from around the world met here in another round of preparatory conferences regarding the court. It will likely be established during a treaty conference in Rome this June. As envisioned so far, the court will have jurisdiction over war crimes, crimes against humanity, and genocide. Gender based and sexual violence will also be included.

The court does have its detractors.

"I can't think of any pros regarding the court offhand," says Brad Schaefer, a J.Y. Kingham Fellow for International Regulatory Affairs at the Heritage Foundation in Washington. "The fact that certain events are considered atrocities is because they are so rare. So why do we need a standing court that would be expensive to run? It should be no problem to assemble one as needed."

However, human rights groups argue that the UN hasn't done so. Since the end of World War II, the world has seen Pol Pot, head of Cambodia's Khmer Rouge, which killed more than a million people in the 1970s, march across its stage. It has seen Saddam Hussein unleash biological weapons against his own citizens.

Mr. Schaefer says it's a mistake to think a permanent criminal court would be empowered to bring such despots to justice.

"Take Saddam Hussein. Who is going to arrest and subpoena him?" Schaefer says. "You couldn't empower the court's staff to go into countries and arrest people, that would be unconstitutional and violate countries' sovereignty."

Also left undecided is whether the court would have jurisdiction over attacks on civilians, mass starvation, the use of nuclear weapons, and land mines. In addition, whether there will be witness-protection programs hasn't been decided.

"When thinking about establishing a court it's important to consider a witness-protection program," says Darija Pichanick, who fled Sarajevo in 1993. "I don't want to see even more killings against those who would come forward. In Bosnia they - the criminals - walk around free."

Now a member of the board of the Women's Commission for Refugee Women and Children, Ms. Pichanick told a roomful of delegates about life in Sarajevo during the war.

Pichanick says she witnessed countless people felled by snipers' bullets. She says that while she will never overcome the sight, a permanent court would help bring some peace.

But beyond a general consensus that some type of court is needed, many questions remain regarding the court's independence and effectiveness.

The US, for example, is among several nations that say the 15-member Security Council should approve any case that deals with a major conflict.

Jelena Pejic, senior program coordinator for the New York-based Lawyers Committee for Human Rights, says she finds that discouraging.

"There are so far no provisions for prosecutorial power, and that's seen by the human rights community as a tremendous weakness," says Ms. Pejic. "If the prosecutor doesn't have the power, the court will be politically driven," say Ms. Pejic." The court must be able to prosecute and punish the most serious crimes, whenever they occur and by whomever."