Despite U.S. dissent the world community finally creates a new court to judge the crimes of war

By BRIGID O'HARA-FORSTER

he spectre of the century's slaughtered millions haunted Rome as the world's nations struggled for five weeks to create the first permanent international body dedicated to punishing the crimes of war. "Victims of past crimes and potential victims are watching us," said U.N. Secretary-General Kofi Annan. "They will not forgive us if we fail."

They did not fail. Cheers and applause echoed as representatives of some 160 nations, assisted by more than 200 non-governmental organizations, gathered last week in the plush maze of the U.N. Food and Agriculture Organization's building, voted overwhelmingly to create the International Criminal Court (I.C.C.). But success came only after frantic last-minute negotiations to bridge philosophical divides that left the U.S. in opposition to the treaty and at odds with most of its major allies. Just how viable the court will be if the world's superpower carries out its threat to "actively oppose" the new institution remains to be seen, but 18 judges will gather in the Hague within the next few years, ready to try cases of genocide, war crimes and crimes against humanity.

The duality of mankind's urges to both wage war and curb its own bellicosity is virtually as old as warfare itself. But it was only in the 19th century that refinements in the technology of battle concentrated minds on serious attempts to find judicial ways to combat their brutality. The laws and customs of war were codified at Conventions in the Hague in 1899 and 1907, and efforts continued between the two World Wars. But those laudable agreements were impotent in face of the unprecedented carnage of the 20th century's first half, when an estimated 58 million died in Europe alone. After World War II, international tribunals at Nuremburg and Tokyo tried and convicted the conflict's instigators for war crimes, crimes against peace and against humanity itself. But these judgments were carried out within a temporary judicial framework imposed by the victors.

The Geneva Conventions of 1949 continued to build a body of international law governing the conduct of war, but the problem of applying the provisions remained. The newly formed U. N. had commissioned a study in 1948 to look into establishing a permanent tribunal, but the cold war prevented any real progress. The topic surfaced again only in 1989, when the International Law Commission began preparing a draft statute for an International Criminal Court. But what really galvanized the international community was the chaotic disintegration of Yugoslavia and the atrocities that accompanied it.

The U.N. eventually moved to create an ad hoc criminal tribunal on the crimes committed during the Bosnian war in 1993, followed a year later by another one-off body for Rwanda. The distinguished South African jurist Richard Goldstone, the original chief prosecutor for both tribunals, says that those courts represented "the first real international attempt to enforce international humanitarian law." But establishing those bodies took up to two years of preparatory work and negotiation. "The thing is to avoid having to spend six months looking for a prosecutor," notes Theodor Meron, professor of international law at New York University Law School, "and a year looking for a building."

Even though Bosnia's most notorious accused war criminals have not yet been brought before the Hague tribunal, it has indicted some 60 people, holds 27 men in custody and has handed down two judgments. This month the court launched the first genocide prosecution in Europe. Deputy Prosecutor Graham Blewitt says that "We have been a model for the creation of the new court."

International law has always involved an inherent tension between national sovereignty and accountability. But the continuing carnage since 1945--another 18 million dead and the likes of Idi Amin, Pol Pot and Saddam Hussein reigning in terror --reinforced the U.N.'s determination to act. As it did so, Washington began to fret. Michael Scharf, currently professor of law at New England Law School, was the State Department's point man on the court under President George Bush. "One of my jobs, which I did not enjoy," recalls Scharf, "was to find ways to stall it forever." President Clinton has been far more supportive, but his administration, too, developed serious qualms. Recalling the invasions of Grenada and Panama, and the bombing of Libya, the U.S. worried that similar actions in the future could involve officials all the way up the chain of command being hauled before the I.C.C.

As the conference convened in Rome on June 15, it was beset by disagreement. The most divisive questions revolved around the precise definition of the crimes to be within the court's jurisdiction, the breadth of that jurisdiction and just who would determine which cases should be brought. The U.S. went in with goals that allied it uncomfortably with China, Russia and India, as well as Libya and Algeria, but put it at odds with most of its usual friends who gathered among the so-called Like-Minded Nations seeking a strong and independent Court. "We are not here," said Washington's U.N. ambassador, Bill Richardson, "to create a court that sits in judgment on national systems." The U.S. is concerned that its many soldiers serving overseas could become involved in confrontations that would make them vulnerable to what an Administration official called "frivolous claims by politically motivated governments."

The Washington negotiators--who rejected universal jurisdiction, subjecting any state, signatory or not, to the court's remit--agreed that the court should have automatic jurisdiction in the case of genocide, giving it the ability to prosecute individuals of any country that had signed the treaty. But they sought a clause allowing countries to opt out of the court's jurisdiction on war crimes and crimes against humanity for 10 years. The agreed statute allows states to opt out of the court's jurisdictions only on war crimes and only for seven years. It also includes the crime of "aggression" within the court's jurisdiction, subject to a precise definition of aggression.

Washington had also wanted to give only the Security Council and states party to the agreement the right to bring cases to the court. The statute, however, also empowers the prosecutor to initiate cases. The U.S. did manage to get a compromise, promoted by Singapore, allowing the Security Council to call a 12-month renewable halt to investigations and prosecutions included in the text. "If states can simply opt in or out when they want, the court will be unworkable," said a senior official in the German delegation. Without an independent prosecutor, he added, "crimes will be passed over for political reasons."

Although conference chairman Philippe Kirsch of Canada had already successfully chaired at least eight international conferences--brokering agreements on issues such as terrorism and the protection of war victims--all his undoubted mediation skills failed to resolve the disputes. As Washington became increasingly isolated, a copy of U.S. "talking points" circulated among the delegations, suggesting that if the court did not meet U.S. requirements Washington might retaliate by withdrawing its troops overseas, including those in Europe. Although few believed in that possibility and the Administration downplayed it, State Department spokesman Jamie Rubin explained that "The U.S. has a special responsibility that other governments do not have."

After all the wrangling, what emerged was a court to be located in the Hague--where the International Court of Justice already deals with cases brought on a civil basis by states against other states. It is to contain four elements: a Presidency with three judges; a section encompassing an appeals division, trial and pre-trial divisions; a Prosecutor's office; and a Registry to handle administration. The court, which will act only when national courts are "unwilling or unable genuinely" to proceed, will confine its maximum penalty to life imprisonment.

How the court will fare without the support of the U.S. is unclear. Washington has provided vital political backing for the Yugoslav and Rwanda tribunals and continues to be their leading financier. "We have shown that the only way to get war criminals to trial is for the U.S. to take a prominent role," said one Administration official last week. "If the U.S. is not a lead player in the creation of this court, it doesn't happen."

Nevertheless, the fact that a court with teeth has actually been created was an unprecedented move by the world community to make the rule of law finally prevail over brute force--a step towards fulfilling Secretary-General Annan's pledge that "At long last we aim to prove we mean it when we say 'Never Again.'"

--Reported by Lauren Comiteau /The Hague, Sally Donnelly / Washington, William Dowell /New York, Peter Hawthorne / Johannesburg and Martin Penner /Rome