A world court for criminals

The Economist, October 9, 1999 (U.S. Edition)

Justice should be blind, and universal. That means it should apply to the United States as well as other countries

The soldiers herded hundreds of frightened men, women and children out of their villages and on to the road. When the people stopped to rest, planes swooped down to bomb and strafe them. Panic-stricken, the survivors hid in two culverts under a railway bridge. Over the next three days, the soldiers repeatedly fired machine-guns into the huddled mass from both ends of the culvert, killing another 300 villagers.

Too many such stories have been told this year. However, this particular atrocity was not committed by Serbs. It was committed by Americans, or so it is said. The incident took place in July 1950, when the United States was fighting to save Korea -- and the Koreans who died -- from communist tyranny. For years, survivors have sought in vain for an admission of responsibility by the American government. But now an investigation by the Associated Press has confirmed the survivors' account with testimony from old soldiers still haunted by their role in the killings, and documents showing that they acted under orders. Shamed by the revelations, the Pentagon has belatedly ordered its own investigation.

Although not forgivable, the desire of American officials to ignore the incident is perhaps understandable. It was long ago. The United States' armed forces are now far more assiduously schooled in the laws of war than they used to be, and they pride themselves on avoiding civilian casualties. In places like Kosovo, Bosnia and Haiti, the lives of American troops are now more often put at risk protecting civilians than trying to win all-out wars.

And yet such a plea of mitigation makes even less comprehensible America's continuing opposition to what could be the single biggest step towards preventing future massacres -- the creation of a permanent international criminal court. The United States has lobbied hard against the establishment of such a court, even though dozens of countries, including all America's NATO allies except Turkey, have indicated that they will ratify the treaty setting up the court.

Sovereignty, the new last refuge of a scoundrel

America has no principled objection to the idea of supranational bodies dealing with war crimes. Quite the contrary. It was the prime mover behind the international criminal tribunals for Yugoslavia and Rwanda. It refused to guarantee immunity from prosecution to leaders in the Bosnian conflict even to get a peace agreement. Along with Britain and France, it supplied information to the Yugoslav tribunal that led to the indictment of the Serb leader, Slobodan Milosevic. In an effort to bring some belated justice to Cambodia, it has actively supported the establishment of an international tribunal to put Khmer Rouge leaders on trial.

America clearly believes in building a system of international justice, but on one vital condition: that any such system does not apply to America itself. Its initial enthusiasm for a permanent court evaporated when other countries rightly refused to tie the court's powers to the veto of the UN Security Council, which would have made it a mere political tool of the great powers. Since then, America has pleaded that, as the sole remaining superpower, its soldiers and officials would be the target of politically motivated prosecutions, hampering its peacekeeping efforts around the world.

America's allies have similar concerns, so they have restricted the powers of the court's prosecutor and given the court the right to act only if national authorities themselves refuse to investigate or punish alleged atrocities. This should be enough to allay American fears. But the real objection of some officials, and of opponents in Congress, is more fundamental and even less defensible: they cannot tolerate any infringement of American sovereignty by an international body over which the United States does not have direct control.

Such an absolutist version of sovereignty is rapidly becoming an anachronism. America blew a huge hole through it by intervening in Kosovo and bombing Serbia. Its frequent denunciations of war crimes and other atrocities abroad, and its promotion of internationally enforceable rules in trade and arms control are based on the assumption that absolute claims to sovereignty are no longer legitimate or useful. Judged in this context, America's opposition to an international court is not only hypocritical, but misconceived. Even a superpower would be safer in a world where the rule of international law stood some chance of being applied. And the sad tale from Korea is a reminder that even Americans sometimes commit war crimes and then try to cover them up.

International Criminal Court