Global Policy Forum

By Jonathan Power

An unprecedented movement has emerged to submit international politics to judicial procedures [and] has spread with extraordinary speed," Henry Kissinger observed a few years ago in a tone both despairing and disparaging. His fear is now being borne out for the world to see, with ex-President Augusto Pincochet of Chile, elements of the Sudanese government, and Congolese and Ugandan rebels all likely to be in line for prosecution later this year. As the East Timorese Nobel Prize laureate José Ramos-Horta once put it, "in this day and age you cannot kill hundreds of people, destroy a whole country and then just get fired."

In about two weeks' time, a United Nations commission of inquiry will report on alleged genocide in Sudan's Darfur region. It is expected to refer the results - damning ones - to the Security Council, which must then decide whether to recommend prosecution by the recently formed, but US-opposed, International Criminal Court.

A report on means of strengthening the UN, published in December and written by a group of eminent personages including former US National Security Adviser Brent Scowcroft, has advised: "The Security Council should stand ready to refer cases to the ICC." This could become a difficult issue within the Bush administration, which is under pressure from crucial domestic allies to submit the issue of the Sudan to international justice. Though the administration strongly opposed the court, American Christian groups that have been deeply involved in the Sudan appear to favor international prosecution. It is a possibility that the United States could abstain on the issue, leaving the way open for a majority on the Security Council to push the matter forward.

Inside American jurisprudence, opinion is also changing. Just before Christmas, Unocal, the giant oil company, announced that it had settled an action brought against it by Burmese villagers under the Alien Tort Claims Act. That law dates from 1789, but it has had new life breathed into it by a recent Supreme Court decision upholding its validity. Unocal was being prosecuted for colluding in human rights abuses in Myanmar.

The Supreme Court also announced in December that it was prepared to hear a case that concerns an order from the International Court of Justice (the so-called World Court, which deals with disputes between nations) for US courts to review a death penalty case involving a Mexican citizen. This is very different from its attitude seven years ago, when it thumbed its nose at a World Court order on a similar case. The United States and others opposed to the International Criminal Court, like Russia, China and India, may find it harder and harder to stand back as the number of prosecutions at the fledgling ICC mount.

By autumn, it is likely that the cases that have been referred to it by the governments of Uganda and the Democratic Republic of the Congo involving mass killings and sadistic acts by the rebel groups in the north of Uganda and the east of Congo will be ready for indictments. There is nothing the United States could do to stop these cases going forward.

Indeed, the Bush administration is going to be pressed by human-rights lobbies and perhaps even by members of Congress to work to widen the indictments to include the governments of Congo and Uganda. In fact, the legislation that was drawn up to define the US relationship to the International Criminal Court has a loophole that could allow the administration to support such prosecutions if they don't involve US nationals.

Meanwhile, it increasingly looks as if justice is finally catching up with Chile's Pinochet, the former military dictator and accused torturer. Chile's courts will decide this one, but the case would never have advanced so far if the Spanish prosecutor Baltasar Garzón had not sought his arrest in London and Britain's highest court, the House of Lords, had not decided that under the UN's Convention Against Torture Pinochet did not have sovereign immunity.

In international ad hoc courts, prosecutions continue against the war criminals of ex-Yugoslavia, Rwanda, Sierra Leone and East Timor, and in Cambodia, a court has finally been established to try the crimes against humanity from the Pol Pot era.

The swell in human-rights prosecutions raises the interesting question about what the world community should do with its next Saddam Hussein. What if instead of sanctions and war, the Security Council had authorized an international prosecutor to investigate Saddam's war crimes? Once an indictment had been handed down, an international or even a single national force could have been authorized to seize the indicted suspect.

Could this round of prosecutions carry us that far?