Although it briefly flashed onto the front pages this week, I expect that over the next few months, politicians will contrive to ensure that we hear as little as possible about the International Criminal Court. On Dec. 31, President Bill Clinton signed the treaty which is meant to establish the court. On Jan. 2, a spokesman for George W. Bush firmly declared that “we will review it when we come into office. But we are concerned with a flawed treaty.” Sen. Jesse Helms doesn’t like it—he promised to give priority to a bill barring American cooperation with any such tribunal—and despite Clinton’s signature, even the State Department is wary. I imagine that everyone will therefore try to bury the issue for as long as possible. And they are right to do so—although not for the reasons that they think they are right.
At least on paper, most of the arguments in favor of the treaty are good ones. In the words of Gabrielle Kirk McDonald, former presiding judge of the Yugoslav war crimes tribunal, it has traditionally been “easier to go to prison for killing one man than for killing 100,000,” and so it remains. Sanctions and embargoes have never really worked against mass murderers, and “humanitarian” military intervention doesn’t target the people who most deserve it. Only by holding individuals accountable, the argument continues, will crimes against humanity be stopped: The perpetrators themselves need to be personally frightened. To prove their case, advocates of an international criminal court cite the example of Kirk McDonald’s tribunal, one of two ad hoc criminal courts set up over the past few years (the other one deals with Rwanda) in The Hague: It is widely believed that one of the reasons behind former President Slobodan Milosevic’s mysterious decision to withdraw from Kosovo, ending the NATO bombardment, was the tribunal’s indictment of him as a war criminal. (To be precise, as one American diplomat once told me, it is thought that the indictment frightened the generals around him: They didn’t want to spend the rest of their lives dodging NATO justice.) But without trained staff, and without the legitimacy of a major international treaty behind them, their success has been mixed: They indicted Milosevic, but they don’t quite have the apparatus to make him stand trial.
Hence the pressure, generated in part by a wide variety of human rights groups, now calling themselves the Coalition for an International Criminal Court, to set up a permanent body. And it looks as if they may succeed. A conference held in Rome in June 1998, under the auspices of the United Nations, wrote a treaty setting up the court—a treaty that has now been ratified by 27 countries. Once that number rises to 60, the court will come into being. It is beginning to seem as if that will happen, whether America joins the project or not.
But there are arguments against the court, too, although as usual, the American arguments are mostly self-centered ones. David J. Scheffer, the U.S. ambassador-at-large for war crimes, has expressed concern that an “ill-intended government could use this court politically to expose our servicemen and women overseas and our commanders to prosecution before this court.” Sen. Helms has the same problem: that Saddam Hussein will take Colin Powell to court for murdering Iraqis, say, or that the Serbs will try to indict Madeleine Albright. There could be other sticky points for U.S. foreign policy, too: I note, without comment, that the Arab League has called for an international tribunal to investigate the Israelis.
But not only will these arguments be easy to shoot down as too America-centric, once the court comes into existence, they also ignore what is really wrong with the idea. For even if the United States doesn’t join, the court will still inevitably have “the West” written all over it. Even if it scrupulously follows U.N. practice, and staffs itself with Tanzanian judges and Brazilian investigators, those providing the money will ultimately influence its workings—or at least that is how it will be perceived. And this utterly defeats the purpose. If it isn’t a neutral institution, dispensing arbitrary justice (and it can’t be, in a world where no one yet agrees what that justice is), then it will be perceived as a form of judicial colonialism and rightly so: Look how upset Chileans became when Spain tried to put Augusto Pinochet on trial. Look how Milosevic set up a “court” in Belgrade to put Albright and Clinton on trial.
Nor is it clear that the court’s advocates have really thought through what it is meant to achieve. What is the point, after all, of sentencing a Milosevic, say, or an Idi Amin? Is it to serve an abstract idea of justice or to help a particular country and a particular group of victims get over a particular trauma? Do we want to make ourselves feel morally superior, or do we actually want to prevent mass murder from taking place in the future? If trials of war criminals are to have any deterrent effect, they need to take place in the country where the crime took place. It will hardly help Milosevic’s victims if his trial is conducted in The Hague, thereby allowing his supporters to dismiss it as “foreigners’ justice.” Far better for it to be conducted by the Serbs themselves, who would then, during the trial, have to confront their own role in his rise and fall.
We are already putting enormous pressure on Vojislav Kostunica, the new president of Yugoslavia, to allow the Hague tribunal’s investigators to operate in Serbia: We’ve even made it a condition of international cooperation in other spheres. How much more useful it would be to redirect that pressure and persuade the Serbs to set up a tribunal of their own—and how much more difficult, and how much more messy, and how much more tiresome for those in the West who would like to run the thing from a smooth, dull place like The Hague. But justice is like that: Put simply, it works best where it is designed by the people whom it most directly affects.