War-Crimes Impunity Makes Case for a Permanent Court

THE HAGUE — Mass murderers run for political office. Accused masterminds of genocide run countries. And the rank-and-file war criminal is likely to run a local police station.

Such is the state of war-crimes prosecution in the world’s halls of justice. Plenty of crimes, few convictions. And then more killing, torture, rape, forced labor.

It is a bleak picture, human rights advocates say, one that is giving rise to demands for a permanent institution to hold the guilty accountable.

The movement to establish a permanent international criminal court has taken on new urgency with the horrors witnessed in Bosnia-Herzegovina and Rwanda--and with the inability of the world community to mete out justice.

Advocates in the movement are watching closely the laborious efforts here in The Hague, where the International Criminal Tribunal for the Former Yugoslavia has just issued its first verdict in three years of work.

But The Hague tribunal and its counterpart for Rwanda, which is based in Tanzania, are ad hoc bodies created specifically for the crimes committed in those two conflicts. Like the Nuremberg tribunal that emerged from World War II, these bodies will eventually dissolve.

A permanent court, advocates argue, would make the potential for justice more of a constant.

It would act as a deterrent, they argue, because it would make punishment more imminent.

“The more immediate the threat of indictment and trial, the more likely a potential mass murderer will think twice before embarking on slaughter,” said Kenneth Roth, executive director of the New York-based Human Rights Watch, which is one of the leading proponents of the idea.

A permanent court is well on the way to being set up, though its powers are still under debate.

In about a year, the 17-month-old United Nations Preparatory Committee on the Establishment of an International Criminal Court is expected to draft a treaty that creates the permanent body.

The tribunal in the Netherlands, meanwhile, is seen as an experiment, a “laboratory” in the words of prosecutors here, that can serve as a prototype for the permanent court. Consequently, the failure of The Hague tribunal could doom the larger project.

Such failure looms large: Of 74 indicted war-crimes suspects in the former Yugoslav federation, only eight are in The Hague’s custody. Western nations whose troops are on the ground in Bosnia refuse to order arrest of the suspects, and the governments involved--Croatia, Yugoslavia and the Serb and Muslim parts of Bosnia--have refused all but nominal cooperation.

Although momentum for the international court grows, resistance has come from powerful countries, most notably the United States.

While stating official support for the concept, the Clinton administration is privately worried about the “triggering mechanism”--how easy it might be for unfriendly nations, such as Iran or Cuba, to open prosecutions against the U.S. military or other American representatives.

Washington prefers a weak court that requires approval from the U.N. Security Council--where the United States has a veto--for cases to be undertaken.

But the Security Council’s political interference is precisely what the court should be free of, advocates argue.

The power to delay or prevent prosecutions enables the Security Council to grant blanket amnesties to those accused of committing crimes against humanity, the human rights organization Amnesty International said in a 116-page position paper issued earlier this year.

The permanent court would act when states failed to do so and would have added credibility because it would not be seen as having been created to target a specific group, proponents say. In its ideal function, it would prevent new atrocities from taking place, rather than acting after the crimes occur.

“It is the permanence of the court that permits the deterrent effect to be in place,” said Louise Arbour, chief prosecutor for the Balkan and Rwanda tribunals.

“If that is always in place, you break the culture of impunity,” she said. “It sends signals to leaders that the next time an armed conflict breaks out, and that window for atrocities opens, that the court is already there, watching, politically and financially equipped, and with the ability to catch them.”