Jewish World Review May 15, 2002 / 4 Sivan, 5762
http://www.NewsAndOpinion.com -- LONDON Last week on the Today programme, the South African judge Richard Goldstone and the American legal expert Abraham Sofaer locked horns over the new International Criminal Court (ICC), which will come into being on July 1.
Mr Sofaer, who opposes the new court, claimed emphatically that it would have no jurisdiction over war crimes committed in civil disputes such as the former Yugoslavia or Rwanda. Justice Richard Goldstone responded equally emphatically that the court did have jurisdiction. The two were excruciatingly polite and diametrically opposed.
"The court has no power to deal with intranational genocides," asserted Mr Sofaer, a law professor, former judge and senior legal counsel to the State Department. "Sorry, that is absolutely incorrect," replied Justice Goldstone, chief prosecutor for the UN tribunals on Rwanda and the former Yugloslavia, as well as chairman of the Inernational Bar Association's Task Force on Terrorism.
"I am quite confident it does not," returned Mr Sofaer, adding, "moreover, I might say the court has no power over terrorist crimes."
Sarah Montague, host of the interview, was as puzzled as most listeners must have been. "Surely Justice Goldstone knows what he is talking about?" she offered.
This little attempt at mediation brought no joy. Here were two erudite, knowledgeable men in complete disagreement on a crucial fact. Yet in a sense, both men were completely correct or, indeed, completely incorrect, which is one of the fundamental problems with the court.
In Rome in 1998, the charter and rules for the ICC were drafted. Ever since, the concept of the court has been continually evolving. This "evolution" has a good and bad side. So long as everything is not set in stone, shortcomings can be rectified and safeguards put in.
The bad side has two aspects. The first is that, as in the Today debate, those favouring the ICC can't be pinned down, because they can always allude to the ICC evolving and problems being resolved.
But precisely because the ICC is an amorphous construct, with flexibility in its procedures, jurisdiction and even definitions of crimes, it is the perfect example of what liberal democracies have tried to guard against.
Our free societies are based on the (known and predictable) rule of law - not the rule of men. For example, the crime of "aggression" is now part of the ICC's mandate, but the definition of what constitutes aggression will not be decided for seven years. Signing on to prosecute or be prosecuted for a crime that has yet to be defined seems mad.
As an independent, supranational construct, the ICC will inevitably reflect the ideas of the people who control it. This makes it extremely vulnerable to being hijacked by any force that has the organisation, numbers and audacity to do it - just as the UN and its organisations have at times been hijacked.
The UN's 2001 Durban conference on racism, convened by the UN Commissioner for Human Rights, Mary Robinson - which turned into a gang-up on Israel - is a perfect example. The entire proceedings were flavoured by such practitioners of human rights as Cuba, Algeria, Iran and the Congo, with a cameo role for Chairman Arafat.
Indeed, the UN's Human Rights Commission is a sorry excuse for its name. The 53-member commission's priorities reflect its most successful activists - North Korea, Sudan, Syria, Libya, Cuba and several of the nastier African regimes such as Zimbabwe, all of which ought to be subjects of UNHRC's ministrations, rather than its members.
Last April 15, six EU countries endorsed a UNHRC resolution that, among other unhappy measures, "recalled particularly" the 1982 General Assembly resolution legitimising "all available means, including armed struggle" to establish a Palestinian state: in essence, giving the green light to suicide bombers.
That the same sort of coalition could hijack the ICC is not fanciful. The UN General Assembly asked for input to the ICC by the NGOs that made Durban such a nightmare. One is hard put to know what such groups as the "Information Workers for Peace", "Pax Christi International" or the "Women's Caucus for Gender Justice in the ICC" could contribute to a non-politicised ICC.
The International Red Cross was also invited to the ICC's Rome conference, where it made submissions. But the Red Cross is no role model for equity or justice. This organisation allows the Red Crescent to replace the cross on Islamic ambulances, but has refused for more than 50 years to admit or give official recognition to the Star of David.
The second bad thing about this amorphous ICC is that, whether or not it is hijacked, whether or not it goes after appropriate villains or inappropriate ones, it will not be able to enforce its rulings against the big powers. America, China and Russia have not ratified it, for good as well as terrible reasons.
The result is that the very people most capable by their sheer power and size of the sort of crimes the ICC wishes to deter are the least likely ever to be prosecuted. Its supporters say this is no reason not to make a start on prosecuting war crimes, even if only in smaller countries.
They argue that it is better to do something than nothing. But any national system of justice would consider it a fundamental miscarriage of justice if only shoplifters were prosecuted, but not corporate criminals. Such two-tiered justice would be unacceptable in any equitable system.
Superpowers will always interpret international law as they like. The ICC's preamble states that it will not interfere in the internal affairs of any state. National sovereignty did not stop Nato from interfering in the internal affairs of Yugoslavia in Bosnia and Kosovo.
Perhaps its action was right, perhaps wrong, but enticing as it might be to some to see Madeleine Albright or Tony Blair in the dock, one knows it won't happen.
It is Slobodan Milosevic who is now on trial for war crimes in the Hague before a UN-convened court. In 1995 he was the hero of the hour when he came to America for the negotiations at Dayton, Ohio - after he had openly committed half the deeds for which he is now on trial.
Perhaps such double-vision is necessary. If Milosevic had been charged with war crimes then, as he could easily have been, the Dayton accords would not have been achieved.
The more one thinks about it, the more it becomes apparent how dangerous this new body will be. We will have an international court and an independent prosecutor, selecting at will the criminals he and a small cabal choose to prosecute, without the restraints that elections or even a palace revolution create in a sovereign nation. ICC-type institutions are created by idealistic trail-blazers such as Justice Goldstone or the obtuse Mary Robinson, then wrested from their hands by Hamas & Co.
It really is better to do nothing, no matter how long a reckoning takes. South Africa took Desmond Tutu's advice and did not prosecute either ANC members who "necklaced" black opponents or the whites who enforced apartheid.
Would the former Soviet Union or the former German Democratic Republic have been better off if their murderers had been brought to an international court?
The very question illustrates the double standards that flow from the rule of "men" as opposed to the rule of law. The international community left the USSR, South Africa and other African nations alone to work out their version of truth and reconciliation.
But it was deemed acceptable to interfere with Chile's way of working out its problems when a Spanish magistrate went after General Pinochet. Law subse rvient to trendy ideology is fashion, not justice.
The ICC's definition of genocide is "the intent to destroy in whole or in part a national, ethnical, racial or religious group". There is no mention of class, education or economic groups, so presumably it is still all right to guillotine the aristocracy, starve the petty bourgeoisie and eliminate the intellectuals or any group declared subversive by the state.
Article 8 (2bviii) of the ICC's war crimes mandate, concerning an occupying power's transfer of population "directly or indirectly", is flexible enough to be used by prosecutors to go after any side they single out in a conflict - eg Israel.
It is telling that, before signing, France tabled seven points that allow it to bypass this "crime" of occupation, in addition to reserving its right to use nuclear weapons and undertake any action so long as it is labelled "self-defence".
Meanwhile, in Rwanda, the UN-convened trials are stumbling along amid charges of high-level corruption and intimidation of witnesses. In the Hague, Milosevic is being tried, but only after we blackmailed the former Yugoslavia by bombing and linking all aid to turning him in.
Which seems to sum up the ICC's ultimate dilemma: if such a court wishes to protect the peace, it may have to make a mockery of justice, as the world did in Dayton. If it insists on justice, it may have to go to war, as Nato did in Yugoslavia. It seems better to put away our zeal and remember that justiciable matters are best left to sovereign nations - and the rest to
05/01/02: Why has it taken Le Pen to ask the awkward questions?