An effective global court

Ever since the conclusion of the Nuremberg tribunals that brought Nazi war criminals to justice, the United Nations has debated whether to establish a permanent international criminal court. The idea is a good one. With Cold War obstacles gone, the UN now has the chance to take some practical steps toward creating a viable tribunal.

The UN's legal committee is expected to decide this week whether to schedule a diplomatic conference in 1998 to work out difficult political issues and develop a detailed plan for the court. Although the court's opponents, led by China and India, will try to stall, it seems likely the UN will approve the conference date. Then nations must turn to creating a fair and effective court.

There is a consensus that the court should step in only when national courts cannot or will not, and then probably only to try people for genocide, war crimes or crimes against humanity, the most serious and well-defined breaches of international law. Judges, the prosecutor and a board called "the presidency", which must approve indictments, will be chosen by a vote of the ratifying nations.

The court will undoubtedly be constrained in what it can do. The tribunal would be established by a treaty that states must ratify, and nations that do not sign can simply ignore it. Even if states are obliged to turn over indicted citizens, the court will not be able to force them to do so. People wishing to prosecute Iraqi President Saddam Hussein or the architects of the Tiananmen Square massacre will be disappointed.

But the court can do justice in other cases. It will not cover crimes committed before its existence, but it will be useful in the future for fragile new democracies that succeed repressive regimes, like Haiti, El Salvador, Cambodia or Malawi. These countries lack the strong, independent judiciaries necessary to try still-powerful former dictators and their accomplices in genocide or other crimes.

In other situations, the indicted might be turned in by political rivals. War criminals who flee to third countries could be seized. Fugitives from justice could never travel without risking arrest.

The current working draft, which will surely be altered, contains several features that unnecessarily weaken the court. One allows states to reject the court's jurisdiction for war crimes or crimes against humanity. Another would prevent the prosecutor from initiating investigations, reserving this for the Security Council and member states.

Although the court will be constrained by both necessary safeguards against abuses and by unwarranted limitations, the United States still fears it will be too powerful. Washington has sponsored a destructive push to subject the court to Security Council control. The Clinton administration wants to prohibit investigations of any crimes in regions on the Security Council's agenda unless the Security Council approves. The list of regions usually includes the great majority of the world's hot spots. Almost every nation that is not a permanent Security Council member opposes this idea, which would effectively allow the Security Council to protect its members and their friends.

Washington should drop this demand. The court received a boost last year when President Clinton endorsed the idea of establishing an international criminal tribunal, and the United States has lately played a positive role in bringing this 50-year dream to the brink of reality. It would be unfortunate if the United States now held an effective, fair and credible court hostage to its own weakened vision of what the organization should be.

-- The New York Times