The U.S. is on the wrong side of history in opposing an international war-crimes court

By RICHARD GOLDSTONE

n a small corner of europe this week, women and children huddle in terror as bombs fall. Chased out of their homes by masked soldiers and paramilitaries, many have witnessed brutal slayings, abductions and indiscriminate beatings of family members and friends. Some have escaped to the mountains and forests, literally carrying their elderly and remaining belongings on their backs. Most are trapped in small cities, ringed by tanks that block the delivery of food, medicine and other humanitarian relief and international observers.

These stories of Kosovo are hauntingly familiar. They echo testimony I heard repeatedly from civilian victims of the wars in Bosnia and Rwanda when I served as the existing United Nations War Crimes Tribunal's first prosecutor, from 1994 to 1996.

Unlike civilian victims of war elsewhere in the world, the victims of Kosovo at least have the promise that the existing U.N. War Crimes Tribunal, which has jurisdiction to pursue war crimes in the former Yugoslavia, will eventually hold those who abuse them accountable. In order for the tribunal to bring some comfort to the victims, and to deter future crimes, there must be visible, aggressive investigation of these crimes, followed by indictments and trials.

One would have thought, particularly after the experience of World War II, that the world would not allow civilians to become targets of war. But according to Norway's International Peace Research Institute, civilians are targeted more than ever. At the beginning of the century nine soldiers were casualties of war for every single civilian who suffered the same fate. Today the ratio has reversed, approaching 1 soldier for every 8 civilians. And the number of conflicts seems endless.

Unfortunately, there is little or no support among the major powers for effective military and diplomatic intervention to protect innocent civilians caught in these awful circumstances. One reason is that, particularly in the post-cold war period, the victims are typically contained within the borders of a single state--a syndrome repeated in Kosovo. Thus, establishing an effective system of international justice for these violent and illegal acts against civilians becomes the only deterrent to atrocity, and a deterrent that is urgently needed.

I share the profound disappointment of so many in the U.S. that Washington chose not to join 120 nations--including its major allies--in supporting the establishment of a permanent international tribunal to try those who commit the most serious war crimes, including genocide. It was the U.S., after all, that chose to create the first international war-crimes tribunal at Nuremberg rather than heed the call for summary executions and revenge against the Nazis. No country's support has been more essential to the success of the two existing U.N. war-crimes tribunals for the former Yugoslavia and Rwanda.

Yet Washington may be abandoning that admirable legacy because of exaggerated fears that its soldiers might one day face frivolous prosecutions by the permanent international court. As the world's remaining superpower, engaged in important peacekeeping missions around the world, the U.S. does have an understandable and legitimate interest in ensuring that such a court would not unfairly subject American citizens to politicized complaints.

But the likelihood that a rogue prosecutor would be appointed, let alone the idea that a diverse panel of independent judges would permit the indictment of anyone for political motives, is negligible. The careful procedures and demanding qualifications for the selection of the prosecutor and judges for the new permanent court will serve as an effective check against irresponsible behavior. Moreover, if a prosecutor or judge at the court were to act in a biased or otherwise unprofessional manner, the institution would die. Few nations would tolerate the spectacle of an international judicial institution targeting citizens of any other country for political or malicious reasons.

In deciding not to join in supporting the new international court, the U.S. is uncharacteristically on the wrong side of history. In not joining its closest allies in this achievement, the U.S. finds itself in the uncomfortable company of Iraq, Libya and China, among others. One hopes that as the new court is established and confidence in its evenhandedness grows, the U.S. will change its mind and resume its position of leadership on behalf of international justice.

Richard Goldstone is a Justice of South Africa's Constitutional Court and former chief prosecutor of the United Nations War Crimes Tribunal for the former Yugoslavia and Rwanda.