By Göran Sluiter
At the nuclear security summit in Washington, Dutch prime minister Jan Peter Balkenende proposed the institution of an international tribunal where countries could be prosecuted if they provided terrorists with nuclear materials or otherwise violated international agreements regarding nuclear technology. This is a nonsensical proposal in many ways.
The idea that a new tribunal is necessary assumes existing institutions are unable to respond adequately to violations of these international agreements.
Balkenende explicitly mentioned the reinforcement of the international rule of law as a basis for the creation of the new tribunal. In itself, this is an admirable goal. However, nations can already be held accountable in the International Court of Justice (ICJ), which has arbitrated international conflicts for almost a century and has long been a trusted advisor to the United Nations.
New tribunal, old problems
While the ICJ may not always be effective, the court is not to blame for this. The biggest problem is that states submit themselves to the court's jurisdiction on a voluntary basis. A new Nuclear Tribunal would suffer from exactly the same problem and therefore have little to offer over the ICJ.
Founding a new tribunal - always a costly endeavour - can only be justified if either a considerable amount of new cases are expected or if the development and concentration of specialised know-how is required. For the Americans to be involved, the court would only be able to operate on a voluntary basis. In the past, the US has often stipulated it could not be held accountable in the ICJ. Therefore the new tribunal wouldn't have any work to do and would prove to be a waste of time and money.
The development of specialised expertise would not outweigh these drawbacks. If the new tribunal's purpose is to hold states accountable for their violations of nuclear agreements, the ICJ would be the best place to turn to. Not only has it been around for some time already, it enjoys widespread confidence and is more than capable to settle any sporadic nuclear disputes that might arise.
The easiest way to arrange this would be adding a provision to nuclear treaties that any conflicts arising from their implementation should be submitted to the ICJ, as is common practice with other international agreements.
Perhaps Balkenende wants to take matters one step further and prosecute offenders under criminal law. The main advantage of this approach is it would allow for the prosecution of individuals, including non-state actors, such as members of terrorist organisations.
The ICJ can only judge nations, but a criminal tribunal can hold individuals accountable. In the past, the two forms of prosecution have often operated in tandem. Serbia, for instance, has been condemned by the ICJ for violating the Genocide Convention while individuals, including Radislav Krstic and Radovan Karadzic, have faced criminal prosecution for committing genocide in the Yugoslavia tribunal (ICTY).
Nuclear crimes can be prosecuted
A suitable forum for the prosecution of 'nuclear crimes' already exists: the International Criminal Court (ICC). While the possession of nuclear arms is not a crime under the ICC's statute, their actual use could be considered a crime against humanity, if they were deployed as an act of war or used in a systematic attack on civilians. If this proves to be insufficient ground to prosecute 'nuclear crimes', then the Netherlands - and other countries - could propose expanding the ICC's jurisdiction. This could be done as soon as June, when the countries participating in the ICC will meet in Kampala, Uganda, to improve the criminal court and the justice it delivers. As long as we have the ICC at our disposal, creating a new (criminal) tribunal to prosecute nuclear crimes will remain a pointless exercise.
The question remains what moved prime minister Balkenende to propose such a court in the first place.
It is embarrassing that Balkenende's proposal was immediately followed by the suggestion to base this new tribunal in The Hague, "the legal capital of the world", in the prime minister's words. As a Dutch scholar, I too enjoy the presence of numerous international tribunals here, but this conceited advertising of The Hague's status as the world's legal capital is not without ill effects. One cannot but escape the impression this proposal was motivated by a desire to boost The Hague's prestige rather than sincere concerns over nuclear security. Indirectly, Balkenende has even hurt The Hague's reputation by implying the institutions it is already home to, the ICJ and the ICC, are unable to contribute sufficiently to nuclear security.
