U.S. casts cloud over start of International Criminal Court

Jonathan Power, Columnist, London

In the week before the International Criminal Court comes into formal existence, the United States has decided to pick a fight with it -- and potentially a damaging one. In the United Nations Security Council the U.S. has said that it is not going to vote for the renewal of the mandate of the NATO peacekeeping force in Bosnia, unless the Council rules that American soldiers be given a solemn assurance that U.S. peacekeeping forces could never be prosecuted for war crimes.

This American hostility will hang like a heavy cloud over the ceremonies that will mark the opening of the Court's doors on July 1. To their immense credit the two other western Security Council members, Britain and France, are adamant in refusing to countenance the American request.

All the member states of the European Union regard the Court as an historic breakthrough in the building up of a global rule of law, a chance to deter those who seek to wreck havoc with their opponents by the use of war and by the horrors that often war's corollary -- mass executions, torture, rape and the murder of the innocents.

If the U.S. which initially was an important advocate of the Court's creation -- before the Pentagon had the good fortune to best president Bill Clinton while his guard was down at the time of the Monica Lewinsky affair -- now decides to confront a united Europe on this issue, it could lead to a transatlantic political crisis of a dimension far worse that the steel tariffs' issue of earlier this year and more in the league of the Suez crisis of 1956.

The European Union and the other supporters of the idea of the Court in the four corners of the world conceded nearly all that the U.S. demanded during the negotiations on the statutes of the Court in Rome in 1998. The one concession, however, they were not prepared to make was on the question of the Court's jurisdiction over UN peacekeepers. Indeed, Europe and the rest can be justly criticized for having given away so much and then deciding to dig in their heels on what is a relatively minor issue.

All that is left of the Court now is what the British lawyer, Geoffrey Robertson, rightly described in his book Crimes Against Humanity as " a permanent ad hoc tribunal dependent on references from the Security Council to investigate countries like Rwanda and Yugoslavia where none of the combatants have superpower support."

The Court, as with the ad hoc court in The Hague now trying Slobodan Milosevic, will only have jurisdiction when given a remit by the Security Council acting under Chapter 7 of the UN Charter, or by the consent of the state of which the defendant is a national or in which the crime is committed.

There is now no question, as was originally intended, of the Court having universal jurisdiction, in other words being allowed to prosecute whoever it has good reason to believe it has committed a war crime, wherever they live.

With or without America, July 1st will still be a day to celebrate -- the Hague tribunal currently prosecuting those who committed atrocities in the Yugoslav wars will now in effect be transmuted into a permanent institution.

"In this day and age", as was said in an apt remark by East Timor's Nobel Peace Prize laureate, Jose Ramos-Horta, speaking about Indonesia's former head of the armed forces, Gen. Wiranto, "you cannot kill hundreds of people, destroy a whole country, and then just get fired."

The world at the onset of the 21st century is a very different place that it was after the carnage of World War I in the early years of the last century. Then no political leader, despite the creation of the League of Nations and the World Court, thought for a moment that international institutions might tell states how to treat their citizens. Individuals had no rights in international law.

Today they have many and the International Criminal Court is but the latest advance in a field that encompasses an enormous range, from the rights of women and children to the right not to be tortured.

The ideas of the Enlightenment, most perfectly expressed in political form in the American Constitution, are now writ large across most of the world, a sign that the Enlightenment was not just a dream of European and American thinkers but a way of looking at human life that was essentially practical and doable, and in the end would make the world a much better place.

The Court will surely give future tyrants and their generals pause for thought. It will be a decade or so before we will be able to make the first hesitant judgments about whether this interlude for reflection is translated into political and military restraint. No one will be watching this process more closely than America.

If over time American opinion decides that the Court has acted sensitively and with good judgment -- and that indeed wars and atrocities have probably been averted -- it would be difficult to imagine that America would want to stay out of its fold for very much longer.