The idea of an international criminal court is supported by many people and now has moved from the lobbying of lawyers and moralists to an area of practical action. At the close of the Gulf War, the United States sent a team to investigate Iraqi atrocities with an eye to bringing those who committed them before an international tribunal authorized to apply international law to the acts of individuals. A recent Resolution of the United Nations Security Council calls for an investigation of at least equally repulsive atrocities reportedly committed in former Yugoslavia. Former United States Secretary of State Eagleberger even named a half dozen leaders of former Yugoslavia as fit defendants.
It can be argued that the failure to set up such a tribunal after the Gulf War was a failure merely of political will. But it can also be argued that the failure came about as a result of serious consideration, and that the inhibitions in setting up such a tribunal are inherent in the international legal order. If that is so, then there is no failure of will, but only a realization by those focusing on practicalities that the sort of tribunal envisaged by enthusiasts for international law could not achieve the goals its proponents have in mind. Before too much time of able people is consumed by the effort to establish an international criminal court, it might be well to examine the real obstacles to achieving their civilizing goal by this means in the current international legal order.
