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
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
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. …