- The Washington Times - Friday, January 5, 2001

The creation of an international criminal court has an archetypal, good-versus-evil appeal. The idea that a centralized, global body could save the world's huddled masses from the ravages of genocidal despots and other types of war crimes is vastly attractive.

Unfortunately, upon closer inspection, it becomes apparent that the international treaty which the President Bill Clinton recently directed the United States to sign is flawed in both the details and overarching mission. Indeed, the creation of an international court will generate the same kind of problems caused by other multilateral institutions, such as the International Monetary Fund (IMF). With these drawbacks in mind, it seems history and experience would dictate a gradual reduction in the role of global organizations, rather than the creation of new one.

Many policy-makers and economists have highlighted the "moral hazard" that institutions such as the IMF propagate. The IMF creates moral hazard when it bails out investors who make risky bets, at handsome returns, at the expense of taxpayers around the world. Rather than rescue the wealthy creditors who benefit from IMF bailouts, countries should address the root causes of financial crises.

An international court will surely generate a similar judicial and institutional moral hazard. Indeed, infringing on countries' sovereignty inevitably comes at a price. Although it has a paternalist, almost colonial, appeal, the court could act as a disincentive for developing countries to address the shortcomings of their laws and their execution.

Already, judicial reform is tricky, since it is often blocked by an entrenched and powerful elite that profits from corruption in the courts. If countries can rely on an international court to right terrible wrongs, policy-makers will be less pressed to tackle the arduous process of judicial reform. This would be profoundly troubling, since countries must attack the legal and other conditions which give way to genocide and war crimes rather than put individuals on trial after hundreds or thousands have already been killed.

Paradoxically, the international court also turns back the clock on due process, by U.S. standards. For example, individuals could be tried for the same crime again and again, since the court doesn't give protection against double jeopardy. Defendants may never face their accusers and the court reserves the right to keep secret the identity of witnesses. An entire trial could be held behind closed doors. Furthermore, there are no limits on how long an individual may be held before he is tried. And rather than a jury, defendants are evaluated by a panel of appointed judges, who will surely advance the political priorities of their countries.

So critics aren't too far off when they label this institution a kangaroo court. Unsurprisingly, Mr. Clinton, in his signature "play along, get along" approach to foreign policy, signed onto the court by a Dec. 31, 2000, deadline, despite its glaring flaws. But if this court had been functioning in August 1998, when Mr. Clinton ordered the bombing of a pharmaceutical plant in Sudan the same day Monica Lewinsky testified before a grand jury, the president could well have felt very differently about the jurisdiction of this court.

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