With a Dec. 31 deadline bearing down, lobbying efforts are underway to persuade President Clinton and Israeli Prime Minister Ehud Barak to support a permanent International Criminal Court that would prosecute genocide, war crimes and crimes against humanity.
In the words of one Jewish advocate, the creation of the international court is the “unfinished business” of the Nuremberg Trials where Nazi leaders were prosecuted after World War II.
In the works almost since the end of the Holocaust, the ICC would be charged with prosecuting the most egregious instances of war crimes, crimes against humanity, and genocide. The tribunals that now exist – for Rwanda and the former Yugoslavia – are temporary.
Supporters of an ICC hope the court would hold perpetrators – political leaders, military commanders and civilians alike – accountable for their actions, and would deter similar acts.
The United States and Israel support these aims, but neither has signed on in support of the court. Both worry that the proposed 18-judge panel would be vulnerable to politicization, becoming a kangaroo court where Americans or Israelis are dragged before it and tried on trumped-up charges.
Momentum for the court would be boosted, at least symbolically, if the globe’s lone superpower and the victims of history’s greatest genocide were to lend their support, advocates say.
The U.S. Congress and Israeli Knesset would still need to ratify any moves by Clinton or Barak, but if the deadline passes without a signature from the top, the court will likely be established without input from Washington or Jerusalem.
To date, some two dozen countries have ratified the document. Sixty are needed for the court to be formed.
U.S. resistance, emanating from the Pentagon, is predicated on the notion that many countries resent America’s military might and would seek ways to upbraid it. Critics say such resistance is unfounded, as numerous safeguards would protect Washington from frivolous charges.
For example, court prosecutors would choose which cases to pursue, and countries would reserve the right to prosecute alleged criminals in their own courts.
Yugoslavia, for example, accused Clinton, Secretary of State Madeleine Albright and other U.S. leaders of “war crimes” during NATO’s 1999 air strikes to curb the persecution of Kosovo’s Albanians. More than 500 civilians were reportedly killed during the 77-day campaign.
However, the prosecutor for the International Criminal Tribunal for the former Yugoslavia, Carla Del Ponte, declined to bring charges against the American leadership.
The real reason for America’s resistance, some observers say, is an unwillingness to have its actions held up to international scrutiny.
“There really is a double standard here: we want the court to work for everyone else, but not for us,” said Felice Gaer, director of the American Jewish Committee’s Jacob Blaustein Institute for the Advancement of Human Rights.
The U.S. military establishment “wants absolute authority, that no American will be tried without American consent,” she said.
Imagine, Gaer and others say, if Iraq’s Saddam Hussein or Yugoslavia’s Slobodan Milosevic were afforded the same veto.
Israel’s concerns stem from the international community’s penchant to gang up on the Jewish state, especially in forums such as the United Nations.
On Oct. 19, for example, the U.N. Commission on Human Rights condemned Israel for supposedly causing the recent violence in the Middle East, going so far as to accuse it of “war crimes” and “crimes against humanity.”
If an International Criminal Court existed today, would Barak and his generals be hauled in for judgment?
Moreover, it remains unclear how judges would be selected. Presumably there would be a demand for geographic proportionality, and judges might be proffered by countries that fall well short of Western democratic standards.
It’s quite possible that the ICC court, like the U.N. organs, would be full of anti-Israel members, supporters of Israel say.
“The selection process of judges poses some difficulties for the state of Israel,” said Aaron Jacob, Israel’s deputy representative to the United Nations.
More specifically, Israel worries that the settlements it has constructed in the West Bank and Gaza Strip may be interpreted as “war crimes.”
At the 1998 Rome conference where delegates from some 150 countries voted overwhelmingly to create an ICC, Egypt and Syria successfully pushed to have those involved with “civilian population transfers” into “occupied territory” – both settlers and government officials – labeled “war criminals.”
That prompted Israel – which earlier had lobbied for the ICC – to join the United States, China, Libya, Algeria, Qatar and Yemen as the only U.N. member- states to vote against its formation.
At a pro-ICC event last week at Congregation B’nai Jeshurun in New York, one congregant voiced his concern: “Some of us may not support the actions of the settlers, but that doesn’t mean we see them as war criminals.”
But the AJC’s Gaer and others assure that the language instituted by Egypt and Syria has been greatly watered down.
Besides, ICC backers say, prosecutors and judges will want to be viewed as legitimate and serious, and will tackle only the most heinous transgressions. Crimes would not be prosecuted retroactively.
In part because of these reassurances, and because of the moral obligation Jews feel to throw their weight behind an international court, Israeli ambassador Jacob told the B’nai Jeshurun audience that “serious discussions” are under way in Jerusalem about signing the ICC document.