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.

It is easy to define acts that are crimes under what is conceived to be international criminal law. National war crimes tribunals, military commissions, and courts martial have often enough tried and even executed persons for violating the "laws and customs of war" established in international practice. "Common law" crimes can be created (or found inherent in the system) by tribunals authorized to do that, and prohibitions on retroactive "legislation" can be ignored or reasoned away, as was done by the victor's tribunals at Nuremberg and Tokyo with regard to the "crime" of planning and waging "aggressive war" and "crimes against humanity." Some other acts, like participation in the international drug trade, can be made "international crimes" by treaty or by consistent state practice accepted as law by the international community.

But the new crimes created for Nuremberg were defined by the victorious allies only in the context of Nazi and Imperial Japanese activities and were not applied to the Soviets, who also invaded Poland and the Baltic States by what were evidently pre-arranged "acts of aggression," and whose treatment of some national minorities might have been considered within any definition of "crimes against humanity" that had not been drafted to apply only to the defeated enemies. The treaties relating to drug trafficking reflect similar sensitivities. They do not provide "universal" jurisdiction, they oblige the treaty parties to exercise only their established jurisdiction against persons within that jurisdiction whose acts fit the treaty categories.

Those arguing for the establishment of an international tribunal frequently claim that crimes against humanity as defined for Nuremberg can now be defined without the restrictive language that made those proceedings seem hypocritical. That is so. But unless the law can be seen to apply to Israel's leaders as well as to leaders of various Arab factions, to George Bush (who ordered the invasion of Panama) as well as Saddam Hussein (who ordered the invasion of Kuwait), it will seem hypocritical again. This is not to say that Israeli and American leaders cannot defend their actions, but so can Arab leaders. Should any of them be obliged to?

This raises an even deeper problem. Who decides who are to be the prosecuting authorities, investigators, and judges, and who is to erect and supervise the facilities for punishment? Would the great powers trust the UN General Assembly's discretion in that selection? If so, presumably Israel's leaders and possibly our own would be the first indicted. Would the General Assembly majority be satisfied with the objectivity of the Security Council and its Great Power vetoes? Would the United States, which refused to appear before the International Court in the Hague to respond to Nicaragua's successful complaint, accept the judges of the International Court as impartial either as judges or as a body to select judges and prosecutors?

To solve these questions, advocates for such a tribunal frequently analogize their notion of international crimes to the international legal order's treatment of those who participate in the slave trade, "piracy" or "genocide." The analogy is misplaced. Despite the vigorous rhetoric, there has never been a coherent practice by states or other bodies to enforce the rules relating to the international slave trade, piracy and genocide as if they were part of some universal criminal law. National laws against what national legislators have called "piracy" or "slave trading" have been applied against persons within the traditional reach of national legislation, but the few attempts to apply such laws to the acts of foreigners that did not impact on the prescribing state have normally failed.

The reasons for this failure have to do with the structure of the state system on which the current legal order rests. For example, the Genocide Convention, which defines the crime and obliges states to punish it, limits the jurisdiction to the state in whose territory it happened (which never punishes the acts of its own officials) or an international tribunal which has not yet been established. That is as far as the states framing the Convention were willing to go. Thus, there have never been any trials for "genocide." There is no reason to expect states to agree to any greater transfer to international civil servants or others, of the authority to cite political leaders as "criminals" to be hauled before strangers and tried. Even "terrorists" regard themselves as "freedom fighters" or an "army of God" and deny to those outside their own movement the moral or legal authority to apply to their actions a purported "universal law" which they reject or whose application to their particular circumstances they refuse to acknowledge. In these circumstances, applying to them our version of what the criminal law should be is likely to create even deeper resentments and more violence.

Nonetheless, on 25 May the Security Council adopted a proposal to establish an International Criminal Court. It relies for enforcement on the provision of the United Nations charter requiring members of the UN to carry out some Security Council "decisions." But Bosnian Serbs are not represented in the UN except by Bosnians, against whom they are fighting. If the Serbs will not, and the Bosnians cannot, arrest the accused war criminals, who is bound to enforce the "decision"? What happens if they don't? And the tribunal's jurisdiction is to be restricted to events in the former Yugoslavia. Since the current international legal order rests on a notion of "sovereign equality" of states under the law, and the states that set it up are unwilling to submit themselves to its authority, the arrangement is inherently hypocritical; another "victor's tribunal" being set up belatedly by the winners of the Second World War.

There are many other practical and legal problems, some of which can be overcome; most of which cannot. Like the Kellogg-Briand Pact of 1928 legally renouncing recourse to war: it seems the product of enthusiasts, at best useful in providing a public-relations rationale for hanging a few temporarily helpless villains, on deeper analysis, an embarrassment.

There are several other ameliorating actions that could be explored, none in the "criminal law" mode. International law is not a criminal law system; it is more akin to constitutional law, where enforcement rests on political counterpressures and foreseeable middle- and long-term reactions. A militarily organized movement that commits atrocities is likely to lose allies, unify its enemies, waste its energy in daring strikes of dubious military or political value, and ultimately turn on itself. The United States applied the laws of war in its own civil war 130 years ago not because "the law" compelled that application, but because it was in the interest of the United States to apply that law even if the overall framework of the international legal order did not require it. So held the United States Supreme Court in 1878.

From this point of view, Saddam Hussein has established a reputation as a person whose committed word is worthless and whose ability to lead by moral example and persuasion must be small. And those who believe that an ethnically "pure" Serbia or "Serbo-Bosnia" will be able to resume a level of economic activity that rests on contracts, property rights, mutual respect and the other things that make economic development possible and life bearable, are certain to be disappointed; as disappointed as the radical right in South Africa that thought that South Africa's international investors would not notice that apartheid was politically and economically destabilizing and its proponents not attractive associates even for hard-headed business-people.

In sum, the world would do better grappling with the tragedies of former Yugoslavia and the Middle East, acknowledging that violations of international morality and rules of law are not analogous to violations of national criminal law, but that no law requires anybody to do business with people whose behavior they regard as despicable, or to accept, in lieu of cash, the word of proven liars.