Global Policy Forum

By Donald Devine

Only intense objections from the Pentagon prevented the Clinton administration from advocating a permanent world criminal court when the president recently addressed the United Nations, according to the New York Times. No less a personage than U.N. Secretary General Kofi Annan took the occasion to scold the permanent members of the Security Council for not averting earlier atrocities, and his pointed criticism of the failure to intervene specifically in Rwanda recalled that it was the U.S. which blocked action there five years ago. At the same time, he proclaimed that national borders can no longer hide injustice and that all international bad guys now need to be brought to account under U.N. standards of human rights in a world court.

The Nuremberg trials convicting Nazis after World War II gave the idea a generally positive tenor. And the United States has been the prime mover for additional international criminal tribunals in the former Yugoslavia, Iraq, Cambodia and - belatedly - Rwanda. America's refusal to support a permanent court, therefore, has led to charges of hypocrisy. The influential British magazine the Economist concluded: "America clearly believes in building a system of international justice, but on one vital condition: that such a system does not apply to America itself."

Actually, Albion's perfidy was showing too. While its NATO allies were critical of U.S. inaction, they forced prosecutor's indictments to be limited to cases where the national authorities refuse to investigate and punish alleged atrocities. Since nations causing atrocities would surely pretend to investigate themselves, what this really means is NATO thinks the English and French U.N. vetoes can stop anyone from bringing them to court even if they sign.

While the British fault the U.S. position as "an absolutist version of sovereignty," they do not trust international courts either. Only they are more cynical. NATO skepticism is rational because international standards would not be high. The Freedom House study, "Freedom in the World, 1998-99," and the just-issued "2000 Index of Economic Freedom" by the Wall Street Journal and the Heritage Foundation, make it abundantly clear that freedom, justice, democracy, human rights, limited government and the rest are available only for a minority of the world's population. Under the former, more liberal standard, only 39.8 percent live under free regimes, 26.7 percent live in partly free regimes and 33.6 percent live under unfree regimes - not much different than in 1992 or even 1981, even with the fall of the Soviet Union. Given this standard, no international court would meet out justice any Westerner would recognize as such.

Targets for international censure are very selective and are never powerful. Even following World War II, there was no tribunal for the Soviet Union, which had made a pact with Nazi Germany that started the war, and had simply invaded and raped little Finland. No action was taken against Italy for its invasion and use of poison gas against Ethiopia. No one acted to prevent India from absorbing Goa. East Timor languished for decades after Indonesia simply absorbed its people. One can bet the ranch no one will bring China to account for annexing Tibet.

Anyway, when the justice-dispensers arrive, it is too late and their earlier meddling often leads to worse. Intense pressure was put on Rwanda's Hutu president to share power with his traditional Tutsi enemies. Fearful that they would lose control, Hutus killed a half-million potential voters. In Kosovo, the mass deportations followed, not preceded, NATO's intervention. In East Timor, again, it was Western pressure that led to the referendum and the mayhem. The weak do not get justice because no one is willing to commit ground troops in the midst of carnage, so they only get a tribunal after the fact, if at all. Justice is supposed to be for the strong and weak equally - but that contradicts the entire experience with world criminal courts.

Given the envy the U.S. inspires in the rest of the world and its unique willingness to abide by law, its citizens, soldiers and officials just might be the most numerous and popular defendants. In 1986, a world court condemned the United States for its intervention in Nicaragua. Most forget that a "world court" indicted the United States for crimes against humanity for its Vietnam War. Clearly, the My Lai massacre gave the proceedings some validity, but the whole war?

The recent allegation that some members of the U.S. 1st Cavalry fired upon unarmed civilians and blew a bridge with fleeing refugees, to secure a retreat in No Gun Ri, Korea, again raised the issue of war crimes by the United States. While South Korea is willing to settle for reparations, erratic North Korea has threatened to "square" things - and they are developing nuclear missiles.

Who might be a war criminal? When Russia was accused of bombing Chechens, to stop the region from claiming independence (with neighboring Dagestan), the Russians said they were only emulating the American bombing of Kosovo - and, it is against the Geneva Convention to bomb civilians, which the U.S. did for 78 days. Catholic Bishop Augustin Misago is accused of complicity in genocide by Rwanda for the crime of not sheltering civilians. If omission becomes the standard, the net will be large indeed. Mr. Annan recently called the U.S. "unreasonable" for blocking fuel and food for Iraq and objected to blocking the lifting of the embargo on Yugoslavia for fuel oil, even to two Serbian cities controlled by Slobodan Milosevic's political opponents - much less for the rest of Serbia. This despite the fact a European Union official told Reuters, "People are going to freeze" in all Serbia if the embargo is not ended by winter. Causing innocent people to freeze meets the criteria for a war crime in anyone's book.

As the U.S. Supreme Court has circumvented the constitutional role of Congress and the president to settle major criminal, racial and cultural questions of the day, one could expect a permanent international court to someday challenge the Security Council, which might be what Mr. Annan wants. But even if some Al Gore might one day pledge the U.S. to a world court, one can count on the Russians, the Chinese and the British to veto it.

Hypocrisy truly is the homage vice pays to virtue. For the rest of the world does not wear liberal, rose-tinted glasses. They realize that power makes sovereignty supreme, and that pretending to justice in the midst of either power or mayhem only emboldens the truly crazy to do worse, up to nuclear retaliation and wanton massacre. The United States might as well stand for common sense and national sovereignty now and firmly reject the pipe dream of a permanent international criminal court, once and for all.

Donald Devine, former director of the U.S. Office of Personnel Management, is a columnist and a Washington-based policy consultant.