Global Policy Forum

By Joseph Lelyveld

Under a treaty signed in Rome in 1998, the International Criminal Court was to come into being just as soon as sixty countries had ratified the treaty. On April 11th of this year, ten nations-among them such states as Bosnia-Herzegovina, Cambodia, and Congo, which have had their share of wartime suffering-ratified it, putting it over the top. The total of sixty-six ratifying nations included America's closest allies, and also Yugoslavia, which seized the chance to present itself as a bigger supporter of international justice than the United States. Other holdouts include Russia, China, and the "axis of evil": Iran, Iraq, and North Korea.

The Clinton Administration voted against the treaty and thereafter remained permanently divided on the issue of what to do about the new court. It was never able to satisfy the Pentagon that a wayward or politically motivated international prosecutor would not be able to indict, say, an American pilot whose bombs had missed a target and killed civilians. Finally, President Clinton, with his term expiring, managed to have it both ways: he approved the signing of the treaty by a sub-Cabinet official but denounced it as being unworthy of ratification by the Senate. The Bush Administration was less tortured. It said from the start that it would have nothing to do with the International Criminal Court, which is due to be inaugurated on July 1st. This month, the Administration served formal notice on the United Nations that the United States considered itself to have no obligations to the new court.

It is possible to imagine a confrontation. More likely, however, the American boycott will simply make the new court weaker. It will not have the kind of financial support that the United States is giving the Hague Tribunal, nor will it have American help when it seeks to gain custody of those it indicts. And the United States will find itself with no place to go if it is ever moved to threaten some menacing ruler-a Saddam Hussein, for instance-with the prospect of international prosecution. Other nations will be unlikely to favor the creation of new, circumscribed tribunals like the one now judging Milosevic. Having created the permanent court, they will presumably want to use it, in spite of the United States boycott.

If anything, the attacks on September 11th hardened the United States' position of judicial self-sufficiency when it comes to cases that touch on the lives or actions of Americans. There was no international tribunal in existence at the time of the attacks that could have claimed jurisdiction over the Al Qaeda cases. Even if such a tribunal had existed, it surely would have been dismissed by the United States, which appears to regard the killing of Americans as much too serious a matter to be grouped with other crimes against humanity under a new international court with uncertain prospects. International justice is for broken-down states, Washington seems to assume, not for the one superpower.

America may encourage a state like Yugoslavia to cooperate with an international court, but when an act of terrorism is committed overseas against an American or an American target the United States demands extradition of the suspects, as in the case of Daniel Pearl, the Wall Street Journal correspondent who was murdered in Pakistan. (Pakistan did not comply.) American courts have also started to employ the doctrine of universal jurisdiction. The doctrine, which holds that crimes such as the killing of civilians, torture, rape, and terrorism may be prosecuted anywhere, was used by the United States Court of Appeals for the Second Circuit in 1995, when it allowed a civil suit to go forward in New York against the Bosnian Serb leader Radovan Karadzic on behalf of Bosnians who had been violated by Serb forces. A jury then ordered Karadzic to pay the plaintiffs $4.5 billion-a purely symbolic verdict, since Karadzic, already a fugitive from the Hague Tribunal, was unlikely to submit himself to the jurisdiction of an American court.

A Belgian law went a step further, offering an absolutist interpretation of the doctrine of universal jurisdiction. It said that anyone accused of a crime against humanity anywhere in the world could be charged in Belgium's courts, regardless of whether the accused had ever been to Belgium or whether Belgians were among his victims. This is progress, in the view of some human-rights lawyers. It is also faddish, messy, and a possible argument in favor of the International Criminal Court, if only for the sake of tidiness.

In the aftermath of September 11th, the least fancy explanation of the evolving American attitude to international humanitarian law appears to be that the United States rejects the jurisdiction of any international court that might one day seek to prosecute an American on war-crimes charges or anyone else the United States would prefer to prosecute itself. But it doesn't reject the jurisdiction of a court that indicts Serbs, not to mention Croats and Bosnians (and, before long, The Hague's prosecutors promise, Kosovar Albanians). The fact that Milosevic is appearing in a court whose jurisdiction is limited to what was once Yugoslavia gives him an opportunity to claim that he is fighting for a cause in what is essentially a political show trial.

When Milosevic got to The Hague, he was put on a suicide watch in prison, on the ground that he might be depressive; both his mother and his father had killed themselves. "I would never commit suicide," he protested at a pretrial hearing, "because I must struggle here to topple this Tribunal and this farce of a trial and the masterminds behind it who are using it against people who are fighting for freedom in the world." Now Milosevic carries on about American war crimes: what the Pentagon characterizes as "collateral damage"-the hundreds of Serb and Albanian civilians who were killed in the NATO bombing campaign of 1999. And, when he does, he touches a nerve not only in Belgrade but in Washington, too. Who knows, opponents of this drift in international humanitarian law argue, when an international prosecutor might seek to act on such charges?

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