Courting Danger

Courting Danger

Mini Teaser: Advocates of a permanent international court to try perpetrators of war crimes and other "crimes against humanity" achieved a major success in July 1997.

by Author(s): John R. Bolton

Another alternative, of course, is for the parties themselves to try their own alleged war criminals. ICC proponents usually ignore or overlook this possibility, either because it is inconvenient to their objectives, or because it utilizes national judicial systems and agreements among (or within) nation-states to implement effectively. One important example involves Cambodia. Although Khmer Rouge genocide is frequently offered as an example of why the ICC is needed, its proponents never explain why the Cambodians should not themselves adjudicate alleged war crimes.

Cambodia is again split by intense political differences. As before, the factions seek to internationalize their dispute, each hoping that external political intervention, including the idea of an international war crimes tribunal, will tip the domestic political scales in its favor. Instead, Cambodians should judge their own criminals. There is a strong argument that to obtain the full cathartic benefit of war crimes trials, a nation must be willing to take on the responsibility of judging its own. To create an international tribunal for the task implies immaturity on the part of Cambodians and paternalism on the part of the international community. Repeated interventions by global powers are no substitute for the Cambodians coming to terms with themselves.

ICC proponents frequently assert that the histories of the Bosnia and Rwanda tribunals established by the Security Council demonstrate why a permanent ICC is necessary. The actual evidence proves precisely the contrary: it is wildly premature to extrapolate from the limited and highly unsatisfactory experience with ad hoc tribunals to a permanent Court and Prosecutor.

For Bosnia, as noted above, the ad hoc court was established before the Dayton Agreement, and serves as an example of how a decision to detach war crimes from the underlying political reality advances neither the political resolution of a crisis nor the goal of punishing war criminals. Even today, after Dayton, the tribunal cannot achieve its declared objectives. ICC proponents complain about the lack of NATO resolve in apprehending alleged war criminals. But if not in Bosnia, where? If the political will to risk the lives of troops to apprehend indicted war criminals there does not exist, where will it suddenly spring to life on behalf of the ICC?

It is by no means clear that even the tribunal's "success" would complement or advance the political goals of a free and independent Bosnia, the expiation of wartime hostilities, or reconciliation among the Bosnian factions. In Bosnia, there are no clear communal winners or losers. Indeed, in many respects the war in Bosnia is no more over than it is in the rest of the former Yugoslavia, such as Kosovo. Thus, there is no agreement, either among the Bosnian factions or among the external intervening powers, about how the war crimes tribunal fits into the overall political dispute or its potential resolution. Bosnia shows that insisting on legal process as a higher priority than a basic political resolution can adversely affect both the legal and political sides of the equation.

In short, and very much unlike Nuremberg, much of the Yugoslav war crimes process seems to be about score settling rather than a more disinterested search for justice that will contribute to political reconciliation. If one side - most likely the Serbs - believes strongly that it is being unfairly treated, then the "search for justice" will have harmed Bosnian national reconciliation. This is a case where it only takes one to tango. Outside observers might disagree with this assessment, but outside observers do not live in Bosnia.

And again, the option of Bosnians trying their own war criminals is not even seriously discussed. One reason, of course, is that at the time of Dayton the Hague tribunal was already a fact of life that some parties did not want to modify. More troubling is that Dayton did not really accomplish much more than a de facto partition of Bosnia. Bluntly stated, if Bosnian Serbs, Croats, and Muslims had reached a true meeting of minds at Dayton, they would have resolved the question of war crimes allegations. That they did not is a straightforward admission that Dayton simply papered over, and almost certainly only temporarily, the underlying causes of past and future conflicts.

The experience of the Rwanda war crimes tribunal is even more discouraging. Widespread corruption and mismanagement in that tribunal's affairs have led many simply to hope that it expires quietly before doing more damage. At least as troubling, however, is the clear impression many have that score settling among Hutus and Tutsis - war by other means - is the principal focus of the Rwanda tribunal. Of course it is.

Consider also Iraq. Its August 1990 invasion of Kuwait unquestionably qualifies as an act of aggression, and there is little debate that the Iraqis committed any number of acts against Kuwaitis and others that would be illegal under the Statute of Rome. Yet, by conscious decision, neither the United States nor any other power, including Kuwait, has seriously sought to create a war crimes tribunal for the Persian Gulf War, and the reasons are clear: this is a case to abjure war crimes prosecutions because the appropriate circumstances are not yet present.

In the first place, the victorious Gulf coalition never had as a goal the unconditional surrender of Iraq or Saddam Hussein's removal from power. Moreover, the key defendants from Saddam on down are not in custody, nor is potentially dispositive documentary and physical evidence, which is still in the hands of the Iraqi government and military. Prosecuting the alleged war criminals in absentia is therefore the only possibility, and this approach raises enormous potential risks. Specifically, in absentia prosecutions could give rise to "Versailles syndrome" feelings of injustice and persecution by the West, both among Iraqis and generally throughout the Arab world. What Iraq really needs is a new government that can decide on justice for Saddam and his henchmen as an element of that country's own internal political maturation.

ICC advocates defend the Statute of Rome by pointing to the doctrine of "complementarity" (deference to national judicial systems) embodied in the Statute. "Complementarity", like so much else connected with the ICC, is simply an assertion, utterly unproven and untested. If complementarity has any real substance, it argues against creating the ICC in the first place. If most national judicial systems are capable of addressing the substantive crimes the Statute proscribes, then that demonstrates why, at most, ad hoc international tribunals are necessary. Indeed, it is precisely the judicial systems that the ICC would likely supplant (such as in Bosnia or, possibly, in Cambodia) where the international effort should be to encourage the warring parties to resolve questions of criminality as part of a comprehensive solution to their disagreements. Removing key elements of the dispute, especially the emotional and contentious issues of war crimes and crimes against humanity, undercuts the very progress that these peoples, victims and perpetrators alike, must make if they are ever to live peacefully together.

Next Steps

Rather than walk away from the wreckage of its policy in Rome, the Clinton administration is actively working to recreate its shattered strategy to bring the United States into the ICC. It does so because its commitment to the ICC resides at the core of its foreign policy, and because of the intense criticism from the administration's erstwhile supporters, which may shock those unfamiliar with the Byzantine politics of international human rights. Those scorned demand that Clinton sign the Statute of Rome so that it will "put America back in the camp of the friends, rather than the enemies, of human rights." This is true Puritanism: failure to support the ICC is proof of apostasy on human rights generally.

In response, the administration will likely take several steps. First, it will continue to negotiate with signatories in hope of obtaining sufficient amendments to allow the United States to sign on. Second, it will probably support transferring the work of the Bosnia and Rwanda tribunals to the ICC, thus triggering financial support from the UN (and therefore from its principal funder, the United States). Third, the administration will attempt to have the Security Council refer other matters (such as Cambodia) to the ICC, rather than have them come from state referrals or from the Prosecutor, thus also triggering the UN funding obligation. Fourth, they will seek to provide "temporary" or "transitional" assistance to the ICC, which, in the ways of all bureaucracies, may endure forever.

Given that we face two years before having even a prospect of a president who would resolutely oppose the ICC, we can only assume that the Statute of Rome will enter into force before then. Nonetheless, we should not assume that others, especially those who will pay the bills in our absence, will rush to make it fully functioning. Having done the "right thing" in creating the ICC, many European governments, which have more than a passing acquaintance with cynicism, may not rush to make it fully operational. Nor will they necessarily hasten to risk the catastrophic consequences of attempting to assert jurisdiction over an American citizen, interfere in Security Council matters, or otherwise obstruct U.S. foreign policy.

Essay Types: Essay