To the Editor:

In his comments on Gary Jonathan Bass’s book on war-crimes tribunals, Stay the Hand of Vengeance [Books in Review, July-August], Nicholas Rostow suggests that the recent removal of the United States from the UN Commission on Human Rights bodes ill for the prospects of due process before the new International Criminal Court (ICC). But abusive governments flock to UN human-rights bodies because membership bears no cost. By contrast, governments can join the International Criminal Court only by giving the court jurisdiction over crimes committed on their soil—the last thing dictators want. It will thus be mostly democracies—America’s closest allies—that select the ICC’s judges and prosecutor.

Of course, there can be no guarantee that these officials will apply the court’s extensive due-process protections conscientiously. Much will depend on how the court’s culture develops. But even though there is no immediate prospect of Washington’s joining the court, the United States could still exercise substantial influence by continuing to participate quietly in its evolution.

Such participation has already played a major role in shaping the court’s rules and procedures, as it has also played a central part in shaping the culture of the international war-crimes tribunals for Rwanda and the former Yugoslavia.

Unfortunately, legislation being pushed in Washington by the court’s opponents would preclude such participation, substituting an ideological crusade for the national interest.

Kenneth Roth
Executive Director
Human Rights Watch
New York City

Nicholas Rostow writes:

The proposed International Criminal Court should give the United States pause for a number of reasons, ranging from its potential incompatibility with the Constitution to problems of fairness and due process in an institution trying to be acceptable to all legal systems, many of which do not share our values. Several issues need to be resolved before the U.S. could even consider participating in what Kenneth Roth calls its “evolution.”

First, there is the matter of consent. Most international legal proceedings take place as a result of states’ having agreed to the jurisdiction of a tribunal. As things now stand with the charter of the ICC, a state consents to the court’s jurisdiction simply by conducting military operations on the territory of another state that has accepted the court. In addition, a state can invoke the ICC with respect to a particular alleged crime without submitting to the ICC’s jurisdiction generally.

Thus, for example—and contrary to Mr. Roth’s view—Saddam Hussein could ask the ICC to judge air attacks by the United States and its allies without subjecting his own regime to ICC scrutiny, and this whether or not the U.S. becomes a party to the court’s charter. For world powers that do not want to join the ICC but are sometimes called upon to engage in armed conflict in the international community’s interests and on their own behalf—as the U.S. is now doing—this basis for jurisdiction poses a real, not an imaginary, problem.

Worrisome too is how easily the ICC could be politicized, especially in applying the criteria for determining if an international crime has been committed. To take an obvious example, Israel could be singled out by its Arab enemies, who consider the very existence of the Jewish state an ongoing act of aggression and genocide.

Finally, there is the troubling effect that the ICC would have on the UN Security Council’s responsibilities for maintaining international peace. The ICC charter allows the Security Council to interfere with its own proceedings only once a year, and then only to ask the court to postpone an investigation or prosecution. Thus, the ICC arrogates to itself the authority to address important issues of security and war without the oversight of the world’s great powers.

In this connection, the ICC has also reserved the right to disregard the portion of the UN charter specifying that the Security Council “shall determine the existence of any threat to the peace, breach of the peace, or act of aggression.” No other UN organ enjoys this prerogative.

The ICC, in short, is a vehicle for transforming international politics. As one of the court’s principal advocates said when its charter was concluded, “The world will never be the same after the establishment of the International Criminal Court. . . . The ICC reminds governments that realpolitik, which sacrifices justice at the altar of political settlements, is no longer accepted.” Did all the countries that consented to the ICC really agree that “political settlements” are incompatible with “justice”?

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