New York -- U .S. policy is working against the formation of an effective permanent international tribunal to prosecute war criminals such as those who perpetrated massacres in Bosnia and Rwanda.
The United States wants the U.N. Security Council to have the sole authority to determine whether cases of genocide, war crimes and crimes against humanity should be heard by the proposed new tribunal. And it wants to give the Security Council veto power over other attempts to bring cases before the court.
That, for example, would give Russia the right to refuse to allow trials for those who executed or tortured Chechens. It would set a political standard for bringing cases to the court and allow immunity to the most powerful nations of the world. The United States is supported by Japan and Britain, but it is opposed by most European states. Human Rights Watch told the State Department legal adviser, Conrad Harper, that the U.S. position appears to be an attempt to avoid the embarrassment of rejecting the court's jurisdiction while using the veto to avoid prosecution of Americans. Two special tribunals operating now indicate how important the court could be. A special international criminal court in The Hague, Netherlands, last month indicted 21 people for war crimes in the former Yugoslavia. Another tribunal has been set up to hear charges against Rwandan killers. Washington is supporting those efforts.
Unlike the Nuremberg Tribunal that tried the Nazi high command, the special tribunals don't have jurisdiction against collectivities; they are grounded in an attempt to promote a new kind of international law that would hold individuals -- not groups -- guilty for their acts.
It has become clear that the threat to world peace no longer comes from the clash of superpower armies or the explosion of their strategic megatonnage. It is more likely to come from the inter-communal conflicts that spill across borders, that are used to excuse and foster military adventures, and that find terrible expression in sabotage and terrorism.
The chief prosecutor for both tribunals, Richard Goldstone, 56, a South African Jew, said he understands the demands for collective retribution put forward by the victims of massive political crimes, but he opposes collective punishment.
Mr. Goldstone said: "Our court can't charge the Cabinet or the high command; we can only charge persons. That's a good thing. People make decisions, commit atrocities, give orders. One must get away from collective guilt. Assigning collective guilt to a people or group is very dangerous. It's one of the reasons for cycles of violence in countries like Yugoslavia and Rwanda where the group considering itself the victim continues to want revenge against the group that has been labeled as the perpetrator."
At the same time, people need to see justice done. Mr. Goldstone said: "Governments ignore at their peril the demand by victims for justice from mugging in the street to mass murder. People want justice and want official acknowledgment of what happened. Unless and until they get that, they're not going to accept any settlement. People have continuous psychological trauma and don't begin healing until there's been some measure of justice."
Investigators for the special courts are continuing to gather evidence, and there will be many more names presented for indictments. Only one of the prospective Yugoslav defendants is in custody. If the others are not captured and brought to trial, the judges can issue international arrest warrants and make them international fugitives. The Security Council could take sanctions against governments that didn't comply with requests to hand over the indicted persons. There will be no capital punishment.
Existing international courts try only countries, not individuals. Last year, the United Nations began discussing the need for a permanent international criminal court.
Under a draft proposal, countries would have to agree to the court's jurisdiction for each case in which their nationals were involved except in cases of genocide where the court would have inherent jurisdiction. The Security Council could also submit a case where a country, in league with the perpetrators, opposed jurisdiction.
A committee of U.N. members begins 10 days of meetings April 3 to try to work out differences to see if it can make punishment more likely for the world's war criminals. Washington holds the decision in its hands.
Lucy Komisar is a New York journalist who writes about foreign affairs.