The decision by President Clinton to sign a treaty to establish a permanent international war crimes tribunal under the United nations was a good one, even if its timing suggests that there were ulterior motives. Mr Clinton obviously wanted to get a few achievements on the board given his presidency ends this month. Further he would like to get up the nose of his Republican opponents who oppose the treaty.
He left the decision to the last possible day upon which the treaty could be signed as an originating nation. The pity is that the US did not sign it earlier. It would have given a very worthwhile cause great impetus. That impetus was illustrated by the decision of Israel to immediately change its mind after the US decision from being opposed to the treaty to being in favour.
Hitherto, the US objection was based on a Catch-22. It was opposed to signing a treaty which would subject soldiers and nationals of non-signing nations to it – it was opposed to extraterritoriality applying to its troops. But if it signed, then that objection would disappear. US troops would be subject to the treaty without breaching US sovereignty because the US would have agreed to US troops being subject to an international tribunal by force of it ratifying the treaty and incorporating it into its own domestic law.
US concerns stem from the fact that it has such a large number of troops in many countries and that its troops might be targetted politically with false claims. But those objections have little substance. The US armed forces are well-trained and subject primarily to US law. Trial by the tribunal under the treaty applies when the troops are not brought to book for crimes by their own authorities. Further, the tribunal would not be a kangaroo court, but one subject to the rule of law with impartial judges. The US, of all countries should have no objection to that.
Israel with a lot of troops in occupied territory might also fear political vendettas against its troops. Further Israel sees the United Nations as biased against it – a fear compounded by the fact that “”moving populations into occupied territories” was added to the list of prosecutable crimes. Israel’s about-face indicates that its decision was based more on maintaining the approval of the US than on merit – the right deed for the wrong reason.
The treaty is of immense symbolic and practical importance. Genocide in Cambodia in the 1970s and mass killings in El Salvador, Liberia, EL Salvador and Sierra Leone have gone largely unpunished, and given the political compromises and/or complicity by the rulers in those countries the crimes would remain unpunishable without a permanent international war-crimes court. The existence of the court would send a message that there is nowhere for the criminals to hide and might act as a deterrent in the future.
The tribunal will not, obviously, get every war criminal before it – just as national courts do not get all criminals before it. But that fact that at least some have to answer to justice is helpful for victims. Moreover, the experience with the special tribunals for Rwanda and the former Yugoslavia shows that all indicted accused will either have to face court or suffer at least the punishment of being trapped in their own country, which can be quite insecure. Slobodan Milosevic can testify to that.