War criminals face new court

In the teeth of US opposition, the first permanent international court to try the most heinous crimes against humanity will see the light of day today, when the 60th government to ratify the International Criminal Court declares itself.

Had such an institution existed before, it might have tried former Chilean dictator Augusto Pinochet, the authors of atrocities in Sierra Leone, or Russian soldiers accused of war crimes in Chechnya.

Human rights activists are delighted at what they see as the dawn of a new era for international justice, denying war criminals the near total impunity they have until now enjoyed. The US administration, however, calling the court deeply flawed, has said it wants no part of it.

The new court, due to set up shop next year in The Hague, will try individuals for genocide, war crimes, and crimes against humanity if national courts do not prosecute them properly.

"Millions of people were victims of those sorts of crimes in the 20th century, and in most cases the perpetrators were allowed to plan and carry out their crimes in the knowledge they would not be held accountable," says Jonathan O'Donohue, a legal expert with Amnesty International. "The ICC sends a message that they may be held accountable."

US officials, while voicing support for efforts to bring war criminals to justice, say they fear the court could become a launchpad for politically motivated trials of US servicemen deployed abroad. Washington also objects to the way the court's statute gives it jurisdiction even over citizens of countries that are not party to its founding treaty.

The ICC "lacks the essential safeguards to avoid a politicization of justice," the roving US ambassador for war crimes issues, Pierre-Richard Prosper, told a congressional committee recently.

Mr. Prosper has also suggested that the administration might "unsign" the treaty to emphasize its rejection. Former President Bill Clinton signed the ICC treaty on Dec. 31, 2000, the last day it was open to signature, though he never sent it to the Senate for ratification.

Washington's hostility to the ICC puts it at loggerheads with its closest allies, even those who also regularly deploy troops overseas. Turkey is the only NATO member not to have ratified the treaty.

A permanent criminal court has been on the United Nations agenda for more than half a century, but the massacres in Cambodia, Rwanda, and the Balkans lent urgency to the project.

When the ICC treaty was concluded in 1998, diplomats expected it to take 10 years to gather the 60 ratifications needed to establish the court. In fact, the ICC has gathered 56 ratifications and will come into existence on July 1, after the ratifications today by Cambodia, Ireland, Romania, and Bosnia. The court, due to install itself in temporary quarters in The Hague next spring, will not consider cases that occurred before July 1. ICC members will elect 18 judges from 18 countries, along with a chief prosecutor, at their first meeting next September.

The US administration says it opposes the court because it prefers to "support sovereign states seeking justice domestically when it is feasible and would be credible," and if that proved impossible, to "step in on an ad hoc basis" to establish special tribunals, Prosper told the House Committee on International Relations.

"International tribunals are not and should not be the courts of first redress, but of last resort," he added.

ICC supporters say that this is the court's intention, too. It will be empowered to hear cases only where the accused person's government "is unwilling or unable genuinely to carry out the investigation or prosecution" of alleged war crimes, in the words of the treaty.

That has been the case in many countries in recent years, from Angola and Guatemala to Iraq and Russia – all countries where there is strong evidence of government soldiers committing war crimes in civil wars against their fellow citizens.

The court will be able to try cases involving nationals of any country that is party to the ICC, and cases that occur in member countries, regardless of the nationality of the accused. That means that a US citizen could theoretically be tried, if the court found that the US authorities were shielding him.

But a politically motivated trial "would be virtually impossible, given all the safeguards and checks and balances built into the court structure," says Richard Dicker, a vocal ICC advocate at Human Rights Watch.

Mr. Dicker suspects that the United States opposes the court because officials see it as "a potential obstacle" to the "unfettered discretion they think this country needs to do what it wants, when it wants, where it wants in deploying forces around the world."

But since "the United States does not commit war crimes by plan or policy ... and collateral damage is not the sort of act this court will be investigating," says Dicker, US opposition is misplaced.

In any case, Congress passed a bill last year forbidding the administration to cooperate with the court.

Republican lawmakers have proposed cutting military aid to any country that joins the ICC, except NATO members, and even sending US forces to rescue any US citizen held by the court.

Though Washington's opposition to the court has disappointed its allies, European officials say they hope that when the ICC begins to function, its reality will reassure US critics. Human rights advocates, however, recall that it took the United States 40 years to ratify the UN convention on genocide.