Iraq Crisis: Court to safeguard new world order

SUPPOSE Delta and SAS commandos slip into Iraq and capture Saddam Hussein and whisk him, alive, out of the country. One thing you couldn't do would be to treat him as you would a common criminal.

You cannot put him on trial for the simple reason no court for that purpose exists. What is needed is a fully-fledged international criminal court (ICC). And, mirabile dictu, it looks as if we're going to get one.

In many respects, miracle is the right word. Not even the flawed process of Nuremberg could prod the world into creating a supranational tribunal for war crimes and crimes against humanity. A permanent UN court to bring individuals to account was deemed "impracticable".

So all we have today is the International Court of Justice at the Hague, essentially a civil court dealing with disputes between countries, plus two ad hoc international criminal tribunals, on the former Yugoslavia and Rwanda.

But in 10 days' time in London, EU officials will review the latest ICC treaty draft, five years in the making. In mid-March a final preparatory conference will be held in New York, attended by 140 or more countries. Then in Rome this summer the foreign ministers will settle a draft treaty. Upon ratification, an International Criminal Court will become reality.

The question is, how independent will it be? Will it be able to instigate investigations and hand down indictments; or will it have first to gain the approval of the government of the accused, or of the Security Council? The answer, as ever, lies largely in the hands of America.

It is America, with the support of France, that wants a "weak" court, firmly subordinated to the Security Council. One of its objections is reasonable enough - that America's unique role as a global military power could see its soldiers and policymakers at the wrong end of politically- motivated charges of human rights abuse. The others mainly reflect its prejudices against the UN. On any rational assessment, the case for a strong and independent court is unanswerable.

An ICC trial would reflect the considered judgment of an international panel of permanent prosecutors, expert in the field of atrocities and human rights abuses, and drawing on a growing corpus of relevant international jurisprudence. And the ICC would not just be another manifestation of Western cultural imperialism. The most heartening aspect of the debate is the support for a "strong" court from Third World countries.

There is no guarantee the ICC will work. The US and France may yet manage to emasculate it. Other questions remain: to what arm of the UN the court will be accountable; whether trials in absentia will be permitted, and how to prevent a prosecution if it endangered peace and security.