Global Policy Forum

By Barbara Crossette

A campaign is now under way around the United Nations for the most unusual election of judges ever held anywhere, and the United States is out of the race. From Feb. 3 to 7, governments will be choosing the first panel of 18 justices for the International Criminal Court, the first permanent tribunal in history established to try individuals accused of the most horrible of offenses: war crimes, genocide and crimes against humanity.

If there hasn't been much news in the United States about this watershed election, there is a reason. The Bush administration has rejected the new court because Washington has not been able to get a blanket exception from prosecution for Americans. Officials as high-ranking as U.S. Secretary of State Colin Powell have been traversing the globe asking governments individually to promise they will never hand over a citizen of the United States. Last summer, the administration announced that it was "unsigning" the Rome Treaty creating the court, erasing the name of the United States from the most important development in international law since the war crimes trials at Nuremberg and Tokyo after World War II.

In 2000, the outgoing Clinton administration, following a pattern of lukewarm and therefore meaningless support for international accords -- the nuclear Comprehensive Test Ban Treaty and the Convention on the Rights of the Child are two other examples of agreements signed and abandoned -- signed the treaty creating the International Criminal Court at the last possible moment to count among the founders and remain among the decision-makers. But there was neither the time nor the intention to submit the treaty to the U.S. Senate for ratification, where it would have been defeated in any case.

January will be a critical month for the long-term future of the International Criminal Court, now setting up its operations in The Hague, which is becoming the center for international law in the U.N. system. The International Court of Justice (the World Court) is based there, as is the war crimes tribunal for the former Yugoslavia and the office of the chief prosecutor for both that and the Rwanda war crimes court based in Arusha, Tanzania.

Supporters of the new International Criminal Court are concerned that governments with candidates in the field will spend January horse-trading for votes, as so often happens in the United Nations, with the result being the election of some weak candidates. The criteria for choosing judges are complex, and to be elected, candidates need to win two-thirds of votes cast by the nearly 90 nations that have signed and ratified the treaty and are therefore eligible to take part in this election. There are 44 candidates from as many countries in the race for the 18 seats on the bench. Nominations closed last month.

The withdrawal of the United States from any relationship with the court has, paradoxically, made the choice of judges more crucial, because only if the strongest possible judicial panel emerges can there be hope that a future U.S. administration will be able to reverse this negative policy and make a case for joining. Most friends of the United States, including members of the European Union and NATO, have signed and ratified the Rome Treaty. Many have revised their legal systems to bring them into alignment with the court.

At the Coalition for the International Criminal Court -- a group of more than 1,000 organizations, including leading bar associations in the United States -- Caroline Baudot, the legal research officer, underlined the significance of the coming election. "A qualified and independent bench is crucial if we want the court to work, and be supported," she said. "The first bench must be without reproach."

To open the campaign process to as much public scrutiny as possible, the coalition has written to all candidates, asking them to address questions about their qualifications, experience, legal writings and attitudes toward the work of the court and the nature of its jurisdiction. Results of the survey can be checked on the coalition's Web site.

The Women's Caucus for Gender Justice, a member of the larger coalition, is actively working to ensure that as many women as possible be elected to the first bench. The regulations creating the court say that there must be at least six women and six men among the 18 judges. Ten women have been nominated by their governments. The best known among them in legal circles is South Africa's candidate, Navanethem Pillay, who is president of the war crimes tribunal for Rwanda. The nine other female candidates come from Brazil, Costa Rica, Ghana, Hungary, Ireland, Latvia, Mali, Poland and Switzerland.

The new U.N. high commissioner for human rights, Sergio Vieira de Mello, has publicly called on nations to back women for judgeships, in part because of the need to preserve the great strides made by the two ad hoc tribunals for the Balkans and Rwanda -- and the rules of the new permanent court -- in making abuses against women crimes of war in conflict areas. "Let us not thwart some of the most important advances on gender justice that are embodied in the statute by failing to act in practical ways to implement them," he told a General Assembly committee dealing with human rights.

Among the male candidates are also some leading names in the fast-evolving field of international law. Perhaps best known among them are Claude Jorda of France, a jurist who was president of the International Criminal Tribunal for the former Yugoslavia, and Philippe Kirsch of Canada, an expert on international criminal law who presided over the series of conferences that gave the court its final shape following the adoption of the Treaty of Rome in 1998.

With candidates of this caliber in the race, and hopefully on the bench, it will be difficult for the United States to belittle the court in the eyes of the world -- and easier for the court's many supporters among U.S. lawyers and judges to keep up the pressure on Washington to deal with this important tribunal.

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