Douglass Cassel , "Why We Need the International Criminal Court," The Christian Century, May 12, 1999, pp. 532-36.

This has been a good century for tyrants. Stalin killed millions but was never even charged. Pol Pot slaughtered well over one million but never saw the inside of a prison cell. Idi Amin and Raoul Cedras are comfortably retired. Despite recent legal complications, Chile's General Augusto Pinochet, too, will probably escape trial. Ditto for Slobodan Milosevic, who has chosen to close out the century by brutalizing Kosovo.

There have been few exceptions to this pattern of impunity. Most notable were the Nazis at Nuremberg. Also joining the short list of adjudged were the Greek colonels, the Argentine junta, the genocidal regime in Rwanda and some in the former Yugoslavia. But the odds have overwhelmingly favored those who commit atrocities.

Will the 21st century be any better?

The answer may well depend in large part on the success - or failure - of the world's first permanent court with global jurisdiction over the most serious international crimes. Last summer in Rome, by a vote of 120 nations in favor, seven opposed, and 21 abstentions, a United Nations diplomatic conference adopted a treaty to establish an International Criminal Court (ICC) in The Hague. Initially it will hear cases of genocide, serious war crimes and crimes against humanity, but only cases which national governments are unable or unwilling to prosecute.

The ICC will differ from the existing "World Court," or International Court of Justice, also in The Hague. The World Court hears only lawsuits between governments and cannot prosecute individuals. As a permanent, global court, the ICC will likewise differ from the special International Criminal Tribunals created by the UN Security Council for atrocities in the Former Yugoslavia and Rwanda.

Nearly all the world's democracies - Europe plus a group of "like-minded" countries like Argentina, Australia, Canada, Costa Rica, South Africa and South Korea - supported the Rome treaty. Seventy-eight nations have now signed the treaty, indicating their intention to join it. Once 60 countries complete the ratification process (to date only Senegal has done so), the treaty will go into effect and the ICC will be created.

Late blooming twentieth century tyrants need not fear; the ICC will have power to try only crimes committed after it is established. The current carnage in Colombia, Congo and Sierra Leone, for example, will either go unpunished or must be addressed in some other way.

Only two democracies - Israel and the United States - opposed the ICC, thereby joining a rogue's gallery of regimes like China, Iran, Iraq, Libya and Sudan. Israel's opposition is regrettable but understandable: the Jewish state has lost so many lopsided UN votes that it fears empowering an international prosecutor.

The US, too, professes to fear frivolous or politically motivated prosecutions of American soldiers and officials. However, the ICC has so many built-in safeguards against unwarranted prosecutions that the odds of abuse are minimal. Otherwise the ICC would hardly have garnered support from Britain, France and other countries with extensive military and peacekeeping forces overseas.

Washington's real grievance is that it cannot control the court. On the 50th anniversary of Nuremberg in 1995, President Clinton became the first US President to announce support for an ICC. But the US insisted on an ICC that would be effectively an arm of the UN Security Council, making prosecutions subject to a US veto and insulating Washington from unwanted trials.

The rest of the world found this vision uninspiring. Still, in a fruitless effort to induce US participation, the democracies that pushed for an effective ICC at Rome offered numerous concessions, including a significant role for the Security Council. The Council will be empowered to refer cases to the ICC. Indeed, at least in the early years, Council referral is likely to be the primary route by which cases reach the court. While cases can also be referred by states parties to the treaty or by the prosecutor, the obstacles to doing so will initially be so high that the ICC will be heavily dependent on the Council. The Council can also block investigations, by voting to defer them for one year, renewable indefinitely.

These and other concessions, however, were not enough to dispel Washington's fears that if American troops commit war crimes in another country, that country could consent to their being tried in The Hague, unless the US agrees to investigate the case itself. And other veto powers could block a Security Council resolution to defer a case. In short, US control is less than fully assured. This pleased neither the Pentagon nor Senate Foreign Relations Committee Chair Jesse Helms, who declared that any treaty to create a court that could conceivably prosecute Americans would be "dead on arrival" on Capitol Hill.

Thus understood, US opposition to the ICC is of a piece with its vote a year earlier against the treaty to ban anti-personnel land mines, its refusal to pay UN dues, its economic sanctions on allies that do business in Cuba, and its implicit foreign policy of demanding a "superpower exemption" from international rules. It lends further support to the views of the "elites of countries comprising at least two-thirds of the world's people," as recently reported in Foreign Affairs by Harvard scholar Samuel Huntington, that Uncle Sam is "intrusive, interventionist, exploitative, unilateralist, hegemonic, hypocritical, and applying double standards." Small wonder that following the 120-7 humiliation of the US in Rome, delegates applauded for 15 minutes.

US opposition to the ICC is unfortunate not only for American credibility and diplomacy, but also for the human rights banner Washington purports to carry. The rest of the world cannot fail to notice that the US is all for effective international prosecution of human rights crimes committed by Yugoslavs and Rwandans, but not when there is a possibility, however remote, of prosecuting Americans. If human rights is no more than a flag of convenience, its rallying power diminishes.

Potomac parochialism has already weakened the ICC and may slow its establishment. But US opposition is not likely to stop it. American participation, while important, is not indispensable. The world's democracies are likely to go ahead without us. Americans who care more for the dignity of humanity than for the color of their passports should support the ICC, despite its shortcomings, as a first step toward international justice for crimes against humanity.

But does "justice" for atrocities require even a court, let alone a criminal court, much less an international criminal court?

Volumes have been devoted to defining justice. For ICC purposes, however, we can focus on an operational definition. Justice calls for identification, exposure, condemnation and proportionate punishment of individuals who violate fundamental norms recognized internationally as crimes, and reparations to their victims, by means of fair investigations and fair trials by an authorized judicial body.

Thus defined, justice requires criminal courts, including -- as experience has shown -- at least the possibility of prosecution before international courts.

Like other efforts to capture "justice" in words, however, this one covers both too little and, arguably, too much. As Professor Martha Minow has rightly observed, some crimes are so horrific or massive that no amount of punishment can be proportional. And no form of court ordered reparation can truly repair the loss of even a single loved one, much less of an entire people. At best, successful prosecutions can deliver only a measure of justice.

On the other hand, criminal punishment may not always contribute to a just society. As argued eloquently by the Reverend Donald Shriver in these pages (Aug. 26, 1998), "Living with others sometimes means that we must value the renewal of community more highly than punishing, or seeking communal vengeance for, crimes." And while "some forms of justice sow the seeds of justice, some do not. Without peaceful public acceptance of their decisions, courts risk irrelevance at best and social chaos at worst."

The case for an ICC must acknowledge the wisdom of such insights. Yet they do not so much counsel against an ICC as remind us of its inherent limitations. Criminal justice is not, by itself, sufficient to heal either victims or societies.

Still, without at least the credible prospect of criminal punishment, victims and societies are unlikely to wield the leverage necessary to pry out the truth, which is an essential prerequisite to genuine repentance, forgiveness and reconciliation. Pervasive impunity is therefore the enemy of justice in all its dimensions.

How, then, might an effective ICC contribute to justice?

First, in particular cases, it may identify, expose, condemn and punish perpetrators, and provide reparations to victims. It may do so either by its own prosecutions, or by stimulating prosecutions in national courts, brought by governments reluctant to see their officials and soldiers hauled off to The Hague for trial. Either way, an effective ICC could lift the blanket of impunity that now covers atrocities almost everywhere. By so doing, it could provide a measure of justice to some victims. That by itself arguably justifies an ICC.

But there are also broader impacts. One is to reinforce moral norms. There is no more powerful social condemnation of evil than to label it as a serious crime, for which serious punishment may be imposed. The preamble adopted in Rome elevates ICC crimes to the status of the "most serious crimes of concern to the international community as a whole." The ICC's every indictment, arrest, conviction and sentence may serve to remind governments, the media and the public that there is "zero tolerance" for crimes against humanity.

The pedagogical and practical import of such moral messages is illustrated by the current case of General Pinochet. In strictly legal terms, he has suffered no more than deprivation of liberty and freedom of movement for some months (as of this writing). He may never actually be prosecuted. But his hopes of becoming a respected senior statesman and to go down in history as his country's savior have been dashed. He will now be remembered, above all, as a torturer who got nabbed. Not only has he suffered loss of honor and reputation, but Chile will now understand its history differently. In Chile and elsewhere, a generation of youth has been taught that his alleged crimes, most of which took place before they were born, are so unconscionable that he is pursued for them even today.

Such messages sensitize global consciousness. This, in turn, has practical consequences. Governments may find it more difficult to grant visas, confer political asylum or otherwise treat alleged torturers as if their crimes could be forgotten. Human rights, religious and other voices of conscience may be empowered; their demands to treat future Pinochet's as pariahs will be legitimized.

Of course, to the extent the ICC proves ineffective, its moral message will be undermined. An impotent ICC may serve merely to stoke the fires of cynicism. This is one reason why the extensive compromises made at Rome are troubling.

To succeed, however, the court need not be Superman. Consider the case of former Bosnian Serb leader Radovan Karadzik. In 1995 he was indicted for genocide by the International Criminal Tribunal for the Former Yugoslavia. Yet he remains at large, because NATO troops in Bosnia to date have not dared to arrest him. Does his case teach that genocide is tolerated in practice?

Prior to the Dayton peace agreements, that may indeed have been the message. Until then, almost none of the suspects indicted by the International Tribunal had been arrested. Karadzik still strutted the world stage as head of the Bosnian Serb "government." But he was barred from Dayton, because he had been indicted and would have to be arrested if he left Yugoslavia. The agreements reached at Dayton also excluded him from any future position in government because, again, he had been indicted. Since then he has lost his official position, and remains hunkered down in Serb territory, unable to travel. Dozens of other suspects have now been arrested or surrendered. What are the lessons now?

The ICC's success as moral teacher may thus depend less on particular cases than on its overall record. If the compromises made at Rome render it utterly ineffective, it may be worse than no court at all. But it need not be perfect.

The same may be said of its deterrent value. The prospect of prosecution will not deter a Pol Pot nor even, in crises such as currently underway in Kosovo, a Slobodan Milosevic. But not all dictators are fanatics like Pol Pot. And at times, calculating manipulators like Milosevic may find the credible threat of indictment enough to tip the balance toward restraint. How often may depend on how credible is the threat. That, in turn, depends on how the compromises made at Rome play out in practice.

Two of the Rome compromises are the most troublesome. The first imposes a "state consent" requirement on the ICC's jurisdiction (except in cases referred by the Security Council). In cases referred by states or by the prosecutor on her own motion, the ICC will not be free to prosecute crimes regardless of where they are committed. It will have jurisdiction only by consent of either the state where the crime was committed, or the state of nationality of the accused. States which ratify the Rome treaty are parties to the court and automatically consent to its jurisdiction. Other states may consent case-by-case.

The treaty negotiations suggest the significance of this limitation. Germany proposed that the ICC have "universal" jurisdiction, that is, be able to prosecute crimes wherever they are committed. This made legal sense. For centuries individual states have had the right to prosecute piracy, regardless of where it takes place. Treaties now allow states to prosecute genocide, torture and serious war crimes - all within ICC jurisdiction - wherever they are committed. If individual states have universal jurisdiction over such heinous international crimes, why can they not agree to delegate it to an international court?

This legally sensible proposal did not, however, attract much diplomatic support. A new actor on the international landscape, the ICC will have power to prosecute national leaders. Most states were unwilling to give it a worldwide license to prosecute.

South Korea then proposed a compromise. The ICC could hear cases so long as it had the consent of any one of four states: the state where the crime took place, the state of nationality of the defendant, the state of nationality of the victim, or the state with custody of the suspect. While far short of universality, the practical effect of this widely supported proposal would have been to give the ICC jurisdiction in most cases.

But the US strenuously objected. Allowing so many states to trigger ICC jurisdiction would mean the court could effectively bypass the Security Council.

In a last ditch effort to bring the US on board without entirely gutting the court's jurisdiction, the Canadian chair of the Rome conference whittled the four states in South Korea's proposal down to two: the territorial state and the state of nationality of the accused. Over continuing US objections, this became the final text of the treaty.

To understand the effect, consider a hypothetical future Saddam Hussein. If he commits atrocities in Kuwait, either of two states could consent to ICC jurisdiction: Kuwait, where the crimes were committed, or Iraq, the state of Saddam's nationality. Since Kuwait would be likely to consent, in such cases - international wars - state consent is not a major obstacle.

But suppose Saddam commits atrocities against Kurds or political dissidents inside Iraq. Then the territorial state and the state of his nationality are one and the same: Iraq, which he controls. In such cases -- regimes that repress ethnic minorities or others within their own borders -- the ICC may be unable to act.

This poses a serious threat to its effectiveness. Except on referral by the Security Council, the ICC could not, for example, prosecute a Slobodan Milosevic for atrocities committed in Kosovo. Nor a Pol Pot for killing Cambodians, or a Pinochet for "disappearing" Chileans.

How serious a weakness will this be in practice? It depends. If a previous Iraqi government has already ratified the ICC treaty, then the ICC could prosecute a future Saddam for crimes committed in Iraq. Or if a later democratic government consents, the ICC could likewise prosecute a future Pinochet. In any case the ICC could prosecute upon a Security Council referral.

Another potentially crippling compromise made in Rome allows the ICC to hear cases (again, except for those referred by the Security Council) only when the states involved are unable or unwilling to do so. For the US, this is a plus: It can avoid ICC jurisdiction over US officials and soldiers simply by conducting its own good faith investigation -- even if the result is a decision not to prosecute, or an acquittal.

But what if, say, a Milosevic promises to investigate alleged war crimes by his troops in Kosovo? Unlike the International Criminal Tribunal for Yugoslavia, which has primary jurisdiction, the ICC would have to defer to a Yugoslav national investigation, unless the ICC prosecutor can prove that it is a sham. But how can the prosecutor impeach a national investigation before it starts? In most cases she will have to wait until it has a chance to show its true colors. In the meantime, what may happen to fingerprints, blood samples, autopsies and witnesses? ICC prosecutor and judges will have to keep careful watch lest national proceedings, in which prosecutors merely go through the motions, stall and possibly ruin the ICC's case.

Despite such weaknesses and uncertainties, the diplomatic reality is that the ICC agreed to in Rome, after years of negotiation, is the best we will get for the foreseeable future. It deserves support as an essential first step. Once created, it will have a chance to prove itself. If it fails, the need to strengthen it will be demonstrated.

Neither the Clinton Administration nor the Helms Senate are remotely likely to accept the ICC. This is no cause, however, for American supporters to sit on their hands. The battles of public opinion and of public education must now be fought.

ICC safeguards against abuse can be highlighted. For example, its judges must have expertise in criminal or international law, and can be elected only by a two thirds majority of states parties, most of which will be democracies. Its prosecutor cannot begin an investigation of an American without first notifying the US and allowing it to take over the investigation and any prosecution. Even if the US consents, the ICC prosecutor still cannot begin an investigation without reasonable grounds and prior approval by a three-judge panel, which may be appealed to a five-judge panel. Once the investigation is complete, no trial can be held without another prior approval by the three-judge panel. Even then there are extensive fair trial safeguards. No judicial system is airtight, but this one comes close.

Supporters can also dispel Pentagon claims that American troops do more overseas missions and are uniquely exposed to potential ICC prosecution. In Bosnia as of mid-1998, for example, our troops represented less than 20% of NATO forces and only 10% of the International Police Task Force.

Bringing international criminals to justice is no easy task. But the ICC gives humanity in the coming century a chance it never had in the 20th century. Let us not miss the opportunity.

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