Global Policy Forum

By David Howell

With the successful prosecution and sentencing of Bosnian war criminals by the ad hoc international tribunal investigating atrocities in former Yugoslavia, now would seem a good time to push ahead with the current plan for a permanent court to catch and bring to justice some of the world's butchers and war criminals who still go free.

This highly ambitious project is well advanced - some 140 countries have signed the founding Statute of Rome, and about 30 have already incorporated the statute in their domestic legislation and ratified it. There must be 60 such ratifications for the new court to be set up, with its own prosecutor, its own judges, its own supranational jurisdiction (carefully dovetailed with national legal systems) and its own penalties.

There is one big obstacle along the way: The United States is strongly opposed to the project in its present form. The previous administration was cool enough, although at the last minute Bill Clinton signed the statute in order, he explained, to be able to negotiate something better. The new administration is even cooler. Officials from Defense Secretary Donald Rumsfeld on down have shown a marked distaste for the undertaking. The mood in Congress is hostile.

Supporters in London of the court have tried to depict this opposition as no more than the familiar fulminations of Senator Jesse Helms. But the truth is that dislike of the project goes far wider, both in political circles and among some of America's most senior legal authorities. Responsible American opinion of course wants to see international butchers and war criminals brought to justice. But the view is that ad hoc tribunals, such as those currently dealing with the Rwandan and Bosnian atrocities, are best suited to this task.

The idea that there could be a permanently ensconced court, with an independent prosecutor standing above all nations, empowered to investigate and bring charges under sweepingly wide definitions of what constitutes a war crime, fills some (although not all) American lawmakers with deep alarm.

Although the court will not be restrospective, the nightmare scenario rises up before them of ordinary American service personnel, who may in the future become involved in brutal wars where civilians are killed (as for instance in Vietnam or the recent bombing in Kosovo), being hauled before the new court as war criminals.

This could occur even if they were acting under clear orders, or even if they were part of an international peacekeeping force. Their senior commanders and the policy-making officials behind them could all become vulnerable, or so it is feared.

These would be people who in the eyes of their home state had committed no crime, or would have been tried or court-martialed domestically if there was any suggestion that they had. The new court and its prosecutor, with powers to issue warrants and insist on individuals being delivered up to it for trial, could in theory be driven by quite different attitudes. One country's necessary war measures or unavoidable self-defense, possibly bombing a village or moving a local population or attacking a power station or radio station, could be seen from the other side as deliberate and inhuman conduct toward civilians, meriting the charges that domestic courts were unwilling to pursue.

In the words of one leading member of the new administration, John Bolton, giving evidence to Congress, the effect of the new court could be to ''criminalize the use of force in the settling of international affairs,'' a dangerously utopian aim that could well result in dictators and violent rulers going unchecked or unpunished by any form of retaliation by military means.

The problem is that the Americans have a significant point. And more important still, whether they are right or wrong to fear the power of this new supranational jurisdiction, the U.S. Constitution prevents them from allowing the enshrined rights of American citizens to be surrendered to higher authority - at least without the most stringent guarantees.

Yet without the United States the new court will lack plausibility and credibility. The court could certainly survive and flourish without the support of the usual international bad boys - such as Libya, North Korea, Burma or Iraq, all, not surprisingly, absent from the list of signatories. It could probably even get going without India and China, who are also hanging back. But for obvious reasons the United States, as the nation most strongly involved of all in world policing, must be on board.

The exasperation of international lawyers and human rights champions who have labored for years to get the statute agreed upon is understandable. But it is no use impatiently dismissing the American concerns as ''arrogant,'' as one leading proponent has done, or isolationist, if the court is to work effectively. By one means or another the deep and genuine American fears must be met.

That means compromise over the definitions of war crimes, greater accountability for the prosecutor, more safeguards for military and public service personnel against politically motivated investigations, and tighter guarantees that the rights of those accused will be secured, however terrible the crimes with which they are charged.

This in turn can only mean amendments to the Rome statute. Yet as at present drafted the statute cannot be amended for seven years. If the International Criminal Court is to be effective, and not just prove to be another failed monument to half-baked idealism, something, somewhere, will have to give.