Washington Post
Justice best served

Fred Hiatt

Monday, June 19, 2000

Human rights advocates lobbied passionately for U.S. military intervention to save the people of Kosovo. Now many of those same advocates are lobbying for an international criminal court that may ensure that the United States never stages a humanitarian intervention again.

These advocates, along with many U.S. allies in Europe and elsewhere, believe they have occupied the moral high ground, and they are having a grand time needling America for its supposed arrogance and obtuseness. But what feels good now will be costly down the road, and the price will be paid not by self-satisfied human rights lobbyists, nor by the United States, but by the next victims of genocide who will be left without protection.

The sad part about all this is that a permanent war crimes tribunal is not a bad idea. It could have been created with enough deference to national sovereignty to satisfy the United States and still perform most of the useful functions that human rights groups have in mind.

But the process is not moving toward such a sensible outcome. What is emerging instead is a permanent tribunal and permanent prosecutor's office that will operate with almost no external checks and balances--and that will claim jurisdiction over Americans even if the United States does not sign or ratify the treaty creating it. Already a dozen nations, including France, have ratified the treaty establishing this tribunal. When the list grows to 60, the court will begin to operate.

And how will the United States respond? Congress provided a clue last week with the introduction of the "American Servicemembers' Protection Act," which would bar U.S. participation in any United Nations peacekeeping mission unless U.S. servicemen were granted immunity from prosecution by the new court. The bill's supporters include the chairmen of the House and Senate foreign affairs, intelligence and judiciary committees, among others. Sen. Jesse Helms is behind it, but he is not isolated in his position.

The bill in some respects goes too far. It bars any U.S. cooperation with the court, an unwise tying of the next president's hands. But its concerns for U.S. soldiers are far from delusional, despite Human Rights Watch's scorn for the bill's "scare tactics."

Kosovo provides a useful example. The United States and its allies intervened without U.N. authorization--a violation of Serbian sovereignty and probably of international law. Human rights advocates at the time weren't too hung up about that, and for good reason. Sometimes the only way to stop bad men from doing bad things is with force; lawyers won't get the job done.

Once NATO did intervene, though, human rights groups were quick to accuse the United States of violating the laws of war, mostly through its unintentional bombing of civilians. Amnesty International still maintains that the United States committed a war crime when it attacked a Serbian television station (though the architects of hate radio in Rwanda are themselves accused of war crimes, and the United States is criticized for not having prevented those stations from broadcasting).

Not to worry, say the court's proponents. An existing, ad hoc international court on war crimes in Yugoslavia, after deliberating for 11 months, decided not to haul Gen. Wesley Clark or any other American up on war-crime charges. Besides, the proponents add, the new court can't take jurisdiction over alleged war crimes if the offending country investigates the charges on its own.

Sen. Helms can be forgiven for finding neither of these arguments entirely reassuring. That the Yugoslavia court took the charges as seriously as it did is worrisome enough, and--created as it was by the U.N. Security Council--it is far more sensitive to political ramifications than will be the new, unchecked prosecutorial bureaucracy. And while the new prosecutors will have to give deference to a host-country investigation, they and their equally untethered judges will have the power to decide whether such an inquiry is satisfactory or a sham.

There is a need for a standing court. In Sierra Leone right now, the criminal Foday Sankoh has been apprehended, the government of Sierra Leone would like outside help in trying him--and there is no one ready to help. A permanent war crimes tribunal would meet such a need.

That's an easy case, because the country itself wants to cede jurisdiction. The permanent court also could have been set up to take over when the U.N. Security Council requested it--as the council did for Yugoslavia. Such a system would ensure that national sovereignty would be overridden in this undemocratic way only in the most egregious cases.

Such a system also would give a veto over any prosecution to the five permanent members of the Security Council--the United States, Russia, China, France and Britain. Neither the human rights lobbyists nor other governments would countenance such great-power unfairness. Why should Russia in Chechnya get off, they ask, or China in Tibet?

Of course, the countries making these righteous arguments in many cases are the same ones that can't bring themselves even to vote for a resolution condemning Russian and Chinese behavior when the issue rolls around each year in the United Nations. German Chancellor Gerhard Schroeder just welcomed Russian President Vladimir Putin like a long lost brother; if the court that Germany wants were operating, presumably Schroeder would have had to arrest Putin for Russia's savage crimes in Chechnya.

But never mind. It feels good right now to be so principled. And let someone else worry about the next Kosovars who might need American help.

Original article