November 15, 2018

Weighing a World Court

Weighing a World Court

Some 5,000 diplomats, journalists and human rights activists from 150 countries are gathered in Rome this month to complete negotiations on a decades-long project that could be the fulfillment of an age-old Jewish dream, or a modern Israeli nightmareas.

Or, as seems increasingly likely, a Yiddish-flavored joke. Call it the Wise Diplomacy of Chelm.

The conference’s goal is to create an international criminal court, operating under the auspices of the United Nations. The court would prosecute crimes against humanity, including genocide and war crimes.

Properly run, supporters say, the court could serve as a deterrent to the kinds of horrifying atrocities seen in Bosnia and Rwanda. But some fear that it would be an international kangaroo court, its docket filled with spurious charges against Israel and America.

It puts Jewish activists in an awkward position. “It’s not easy for Israel to dismiss the idea,” says international law theorist Allen Gerson, who served with America’s U.N. delegation during the Reagan years. “After all, the court is based on the Nuremberg trials, which grew out of the Holocaust. In theory, we should be in favor of anything that extends the legacy of Nuremberg. But then you come to the question of how it’s implemented. That’s where you need to be careful.”

For the record, Israel is in favor. Israeli Attorney General Elyakim Rubinstein, addressing the Rome conference’s opening, described the court as the embodiment of rabbinic morality — the Talmud’s “Seven Laws of Noah” require that nations create courts of justice, he noted — and as a moral dictate from the Holocaust.

“We cannot help but have in our minds the unspeakable Nazi crimes of the Holocaust,” Rubinstein said, “in which a third of the Jewish people was exterminated, which first prompted the General Assembly of the United Nations to…consider the establishment of a permanent criminal court 50 years ago.”

At the same time, Rubinstein pointedly raised two “general principles” needed to prevent the court’s “politicization.” One was to reserve the court only for “the most heinous of international crimes,” and, even then, only when there was no system of justice to deal with perpetrators at home. In shorthand, no dragging Israel to court for demolishing houses.

The other was to “ensure the objectivity and impartiality of the court,” by drafting strict rules for filing complaints.

The issues Rubinstein raised — especially the rules for filing complaints — are the ones that could doom the talks.

“Everybody agrees there should be some sort of court, but that’s about all they agree on,” Professor Ruth Wedgewood of Yale Law School says.

The plan for an international criminal court was first adopted by the General Assembly after the Nuremberg trials, but languished for a half century because of Cold War politics. It was revived three years ago amid worldwide outcry over atrocities in Bosnia and Rwanda.

“The creation of the ad hoc tribunals on war crimes in the former Yugoslavia and Rwanda brought the concept back to people’s minds as a real possibility,” says Felice Gaer, director of the American Jewish Committee’s Jacob Blaustein Institute on Human Rights. The AJC is one of the earliest and most outspoken advocates of a world court.

The Bosnia and Rwanda tribunals also proved the need for a permanent court, Gaer says. “The ad hoc tribunals had to start up from nothing. They had to hire staff, elect judges and develop procedures from scratch. There’s a widespread view that for such a court to be productive, it has to have a permanent structure.”

It won’t be easy. Delegates in Rome have a 200-page draft agreement that contains some 1,400 points of dispute. Most important is access. Human rights groups and most European countries want prosecutors free to launch probes whenever they detect human rights abuses. Washington wants cases referred only by the Security Council or member states.

Backing the U.S. position is an unlikely alliance that includes Russia, China, Iraq, Egypt and France. Administration spokesmen note that all of the permanent members of the Security Council except Britain back the U.S. plan. Privately, some voice discomfort with the unsavory company America is keeping.

Critics say that’s nothing new. “That’s where we were on land mines,” says Morton Halperin, senior vice president of the Twentieth Century Fund and a former National Security Council official in the Nixon administration. “It took us 40 years to ratify the international convention on genocide. Our basic principle is that there should be international law, and it should apply to everyone but us.”

To some extent, Washington’s hard-line stance is dictated by politics. For one thing, the Pentagon flatly opposes any treaty that might land U.S. soldiers in some U.N. prison. Then there’s Sen. Jesse Helms, R- N.C., whose Senate Foreign Relations Committee controls treaty ratification. A fierce guardian of U.S. sovereignty, Helms led Senate opposition to the genocide treaty for a generation. Last month, his staff produced a string of lurid press releases that mocked the Rome treaty.

Even if a world court emerges from the Rome talks and wins Senate approval, some seasoned observers say that it won’t amount to much. One of its biggest pitfalls is one that has barely been discussed in Rome: whether its very existence might make it harder to negotiate conflicts in the future. Why would rebels or dictators talk peace when it could land them in the slammer?

“What’s happened in this debate is that the word ‘amnesty’ has become anathema to many in the human rights community,” says Wedgewood. “Everyone is eager to set up a court. But you haven’t had a lot of real politicians involved, real people who worry about what states do, and how you sometimes have to live with the facts of power.”

In the end, most observers believe a court will arise. But it could be a court with good intentions and little impact, says Morris Abram, a one-time AJC president who now heads the Geneva-based U.N. Watch.

“We’ve been trying for 50 years to get an international criminal court,” says Abram, who was a prosecutor at Nuremberg. “It’s a matter of simple integrity. But it’s going to be a marvelous, noble effort to do what’s right. We’ll be left with an international system in which ad hoc tribunals are still convened in real situations of conflict.”

J.J. Goldberg writes a weekly column for The Jewish Journal.