The Case for a Permanent War Crimes Court

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ETHNIC cleansing in Bosnia framed the question: Can we prevent genocide and attacks upon civilians and punish the perpetrators?

The UN Security Council tried an ad hoc answer: Create a one-time-only tribunal to try crimes from the Yugoslav conflict. Too soon, the nightmare recurred in Africa, and the ad hoc court's jurisdiction was enlarged to the charnel house of Rwanda.

This summer, UN diplomats will put the finishing touches on a broader gauge strategy to deter humanitarian outrages - creation of a permanent international criminal court. A historic proposal for a permanent court - presented by the International Law Commission - is to be recast in 10 days of top-level intergovernmental meetings in New York this month, before a formal diplomatic conference in 1996 and 1997.

Why permanent? Why not rely on ad hoc courts in the future? The reasons are delay, legitimacy, and needed institutional growth.

The Yugoslav tribunal took two years to become fully operational. UN members waited for months to agree on a prosecutor, a process complicated by unfolding events in Bosnia. Budget approval dawdled. The tribunal's budget was voted by the General Assembly this July, after 26 months of making do, hamstrung by a long debate whether the major powers should pay slightly more. The court is now housed in an insurance building in The Hague. It has heavy security, judges from 11 countries, a newly constructed courtroom with computer displays for the massive documentation of a complicated trial, and a glass dock to keep defendants secure. The court is trying its first case, a Serbian accused of crimes against humanity and war crimes in the Omarska detention camp in Bosnia-Herzegovina.

The newer Rwanda chamber lacks any building at all, and none will be available in Arusha, Tanzania, for nine months.

A permanent court created by treaty would quiet the debate over Security Council authority. The Security Council - an elite institution with greater voice for the superpowers - pushed the limits of its authority in setting up a special court, some UN members say. The democratic process of treaty negotiation would sidestep any doubts about sovereignty.

A court also requires institutional development - for instance, the education of cross-pollinated lawyers and judges, equally at home in criminal law, international humanitarian law, the law of war, and the constitutional law of the United Nations. (Hercule Poirot's investigative instincts must be wedded to the catholicity of a public international lawyer.) This new bar can be developed over time.

Still, the proposal for a permanent court has difficulties that need to be worked out.

A separate mandate to prosecute international drug traffickers is currently envisioned - and could disable the court. …