Will the International Criminal Court (ICC), once established, make the Pentagon less likely to take on humanitarian missions like the one in Kosovo? The existing International Criminal Tribunal for the Former Yugoslavia, which has jurisdiction over any war crimes committed by NATO pilots in the region, does not appear to have deterred the Pentagon. But Fred Hiatt argues that America has more to fear from the court than from the Yugoslav Tribunal ["NATO's Good Fight," op-ed, July 11]. He is wrong.
Mr. Hiatt notes that the court, unlike the Yugoslav Tribunal, theoretically will be empowered to prosecute the crime of aggression if seven-eighths of its member states can agree on a definition. But U.S. troops will never face prosecution for aggression. That is because the ICC treaty requires the definition of aggression to be consistent with the U.N. Charter, which assigns the task of determining the existence of any act of aggression to the Security Council. The U.S. government, through its veto on the council, will thus be able to block any unwanted prosecution for aggression.
Mr. Hiatt contends that the court will be less trustworthy because it will not have a "political anchor in the Security Council," which the Yugoslav Tribunal has. In fact, the court will be more accountable. The council can curtail prosecutions by either the Yugoslav Tribunal or the court. But in the case of the court, a simple majority of member states also can remove a prosecutor. Moreover, any government can deprive the court of jurisdiction over its citizens by mounting its own good-faith investigation and, if appropriate, prosecution.
Citing Human Rights Watch's criticism of certain aspects of NATO's Yugoslav bombing campaign -- such as the bombing of broadcast facilities and civilian infrastructure and the use of cluster bombs -- Mr. Hiatt suggests that international prosecution is not so far-fetched. If these actions violated humanitarian law, he contends, they were "the right thing to do" to stop Slobodan Milosevic -- a "complex reality" that, he says, the court would not appreciate. But what kept NATO from bombing Belgrade indiscriminately or dropping chemical weapons on Yugoslav troops, which surely would have hastened their surrender? Humanitarian law exists for a reason: to spare civilians and soldiers the excesses of war. As the U.S. government has long understood in signing and ratifying humanitarian law treaties, respect for this law is in America's interest.
Human Rights Watch