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However, the news in 2000 was not all rosy on the justice front. The most glaring failure was the international community's refusal to put serious pressure on Russia to bring to justice the commanders who had been responsible for massacres, torture, and indiscriminate slaughter in Chechnya. With Russia wielding a veto on the U.N. Security Council, a council-created international tribunal was not an option. The U.N. Commission on Human Rights did criticize Russia's actions and urge prosecution -- the first such resolution against a permanent member of the Security Council. The Parliamentary Assembly of the Council of Europe also suspended the Russian delegation's voting rights. But therewas little follow-up on these initiatives, and no insistence that Russia apply the rule of law to its troops in Chechnya as a condition of receiving the large international assistance that continued to be sent its way.

Also disappointing was the lack of international attention to justice in Central Africa -- particularly Burundi and the Democratic Republic of Congo. This failure is especially unfortunate in the Congo because the government of President Laurent Kabila effectively blocked an earlier U.N. commission of inquiry established to examine atrocities committed on Congolese soil during Kabila's rise to power in 1996-97. The war fought in Congo since 1998 has also been plagued by widespread atrocities. So far, the international community has taken no steps to end the impunity that helps drive these abuses.

Despite a clear mandate, NATO made no effort through October to arrest Radovan Karadzic, the former Bosnian Serb political leader who has been indicted for genocide and other crimes in Bosnia. Throughout all or most of 2000, he was reported still to be in Bosnia and hence in territory where NATO had permission to operate.

A Selective U.S. Vision of Justice

Perhaps the greatest disappointment was the persistently selective view of international justice adopted by the U.S. government. Washington has been an active supporter of country-specific tribunals insofar as they apply to others, but it has stood in the way of efforts to establish a more universal system of justice that might apply to U.S. citizens as well.

This attitude was evident in the cries of protest heard in Washington when the prosecutor for the Yugoslav war crimes tribunal, Carla del Ponte, dared even to consider opening an investigation of NATO's conduct during the 1999 air war with Yugoslavia. The tribunal has jurisdiction over war crimes committed in the territory of the former Yugoslavia, whether by residents of the territory or outside forces. The prosecutor's scrutiny of the NATO air campaign was entirely appropriate, given that, according to a Human Rights Watch study released in February, up to a half of the roughly 500 civilian deaths during the bombing campaign were attributable to possible NATO violations of international humanitarian law. Although the prosecutor ultimately decided against launching an investigation, Washington thought it an outrage that she would even contemplate holding NATO to the same standards as other forces. Indeed, NATO failed to turn over specific information requested by investigators.

In March, the U.S. government again fell short of its international justice obligations. Tomás Ricardo Anderson Kohatsu, a one-time major in Peru's Army Intelligence Service, was credibly accused of participating in the 1997 brutal torture of a woman who was beaten, burned, raped and electrically shocked in such a manner that she was rendered paraplegic. The U.S. State Department itself had described the case in its annual human rights reports for 1997 and 1999. Anderson Kohatsu came to Washington in March 2000 to testify on Peru's behalf at a hearing before the Inter-American Commission on Human Rights, part of the Organization of American States. At the request of the U.S. Justice Department, which had been alerted to his presence, he was detained while changing planes in Houston. Anderson Kohatsu was not on Peruvian government business and was not carrying a diplomatic passport. Nonetheless, without allowing the courts to consider the matter, Acting Secretary of State Thomas Pickering ordered his release on the dubious theory that he was entitled to diplomatic immunity because he had participated in official business of the OAS. Pickering's actions reflected an administration far more concerned with avoiding political problems with Peru than with carrying out international legal obligations to arrest and prosecute the worst human rights offenders.

Perhaps most troubling is the U.S. government's continued refusal to accept the International Criminal Court. With the help of the United States, the court already has extensive safeguards against unjustified prosecutions. Moreover, under the court's "principle of complementarity," any government can spare its nationals ICC prosecution by conducting its own good-faith investigation and, if appropriate, prosecution. Yet the U.S. government is determined to shut off even the theoretical possibility that its citizens would have to appear before the court. Washington maintains this stance even though an exception to the court's universal reach would undermine the court's legitimacy and effectiveness.

Because the U.S. government has no intention of ratifying the court's treaty anytime soon, it has focused on the supposed outrage that the court would have jurisdiction over the citizens of a state that has not ratified the treaty. But it is common practice for a government to prosecute a foreign national for crimes committed on its territory without first seeking permission of the foreigner's government. The jurisdiction of the ICC amounts to no more than a delegation of this widely accepted power for the most serious human rights crimes. Indeed, Washington itself routinely exercises far more expansive jurisdiction in unilaterally pursuing alleged terrorists or drug traffickers even when their crimes were not committed on U.S. soil.

Still, the U.S. government has advanced one scheme after another to shield U.S. citizens from the court's reach. The latest idea, floated in October, would exempt the citizens of any government that has not ratified the court, so long as the government could show that it "acts responsibly" and is "generally" willing to prosecute its own serious human rights offenders. But these requirements are not in the ICC treaty. Adding them would fundamentally revise the treaty and upend a whole series of carefully crafted compromises made in Rome to secure the court's broad support. Moreover, the principle of complementarity as framed in the treaty permits a government to avoid ICC prosecution of a citizen only by pursuing the specific suspect in question. Washington wants to weaken this rule by requiring only a "general" willingness to prosecute criminals of this nature -- something a country could presumably establish once and for all and thereafter preclude the risk of ICC prosecution for any of its citizens. That is hardly a goal worth endorsing.

The best antidote to this U.S. exceptionalism is for the many governments supporting the court to reject all such schemes out of hand and proceed as rapidly as possible toward the sixty ratifications of the treaty needed to establish the court. The sooner the court is up and running, the sooner Washington will recognize the futility of its quest to carve out an exemption for its citizens. Ultimately, Washington will realize that its best defense against unfair (as opposed to legitimate) prosecutions of Americans is to help create a culture within the ICC that is deeplyrespectful of individual rights and the rule of law. The U.S. contribution to that culture will be far more effective if the United States joins the court -- or at least becomes a friendly supporter of it -- than if it persists in attacking the court from the outside.


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Human Rights Watch World Report 2000

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