MEMBERS of the United Nations are assembled in Rome, where they hope to accomplish the historic task of establishing a functional, independent international criminal court.
The decision to establish such a court may be one of the most significant steps taken by the United Nations for the protection of human rights since the adoption half a century ago of the Universal Declaration of Human Rights.
The international criminal justice system needs to be reinforced. Fifty years after the Nuremberg trials, genocide, mass executions of political opponents, ethnic cleansing and other crimes against humanity are still employed in many parts of the world.
In Bosnia and Rwanda, the international community at first watched helplessly while the perpetrators of genocide, rape and torture went unpunished because national courts were unable or unwilling to act.
When those who commit heinous crimes go free, more atrocities will follow. This vicious cycle of horrific crimes, often sanctioned by the state, can be broken only by establishing an international criminal court. The tribunals set up by the U.N. Security Council to punish crimes perpetrated in the former Yugoslavia and Rwanda have proved their worth in holding perpetrators of grievous crimes accountable. But they are not enough.
Not a global 'supercourt'
The initiatives taken by the United States to prosecute crimes committed under the Khmer Rouge in Cambodia, as well as the resolution recently adopted almost unanimously by the U.S. Senate and House of Representatives calling for a U.N. tribunal to try Saddam Hussein, underscore the need for international action. Only a permanent international criminal court will give the global community the means to effectively prosecute horrific crimes committed anywhere in the world.
The planned international court would not be a global "supercourt" that could supersede national jurisdiction or interfere at will. Those of us who have been negotiating this matter have agreed that an international criminal court would step in only where national courts are nonexistent or are unable or unwilling to prosecute a serious crime.
The court's draft statute outlines effective safeguards against abuse. Fears that soldiers from NATO countries serving in peacekeeping missions might be indicted by the court on unfounded, politically motivated grounds have no basis.
Precisely because the United States has a properly functioning justice system based on the rule of law, it should give its full backing to the efforts in Rome in the next few weeks to complete work on the statute, which will not only guarantee the court's effectiveness and independence but also clearly define its powers.
For the court to be effective, it must preserve its judicial independence from member states attempting to exert political influence and, for that matter, from the U.N. Security Council.
Security Council's role
The Security Council should, under certain conditions, be entitled to stop a case from being referred to the court. For example, the council, perhaps for peacekeeping reasons, might adopt a joint resolution stating that for the time being the court should not investigate certain incidents. But this does not mean the court should require authorization from the Security Council for every move. The quest for justice cannot be stymied by the veto of a single Security Council member.
Nor should countries that agree to the draft statute have the option of deciding which cases should be referred to the court. Otherwise, the court would lose all practical relevance.
Critics of the statute fear that the court would have authority over the armed forces of member nations, with power to seek out and arrest alleged war criminals. However, member states are already required by law to hand war criminals over to authorities.
Rome offers a unique opportunity to take strides toward a safer, more just world. The effort to establish an effective, independent criminal court must not be watered down.
The court must be functional and credible, meaning that it must be able to prosecute genocide, war crimes, crimes against humanity and the crime of aggression whenever national courts are unable or unwilling to do so.
Klaus Kinkel is foreign minister of the Federal Republic of Germany.
Pub Date: 6/23/98