The International Criminal Court is on the verge of creation. 117 states have signed the treaty establishing the Court. 23 states have ratified. If you remember, Judith Kumin, head of the local office of the United Nations High Commissioner for Refugees, when she spoke on Thursday, noted that there were 22 ratifying states. Since she spoke, there is one more ratifying state, South Africa. Sixty states ratifications are needed for the treaty to come into force, for the Court to be created. Signature is an indication of an intention to ratify. So, in addition to the 23 states that have ratified, there are an additional 94, through signature, which have indicated that they will ratify. That means that creation of the Court is just a matter of time.

Or so it would seem. Yet, despite the treaty, despite the 23 ratifying states and the 117 signature states, the creation of an effective international criminal court is still in doubt.

Opposition for the creation of the International Criminal Court comes from surprising quarters. One would expect China or Libya or Iraq to be opposed, and indeed they are. However, the opposition of these states is encouraging rather than discouraging. If Iraq or China or Libya endorsed the Court in the making with open arms one would have to start to wonder about effective the Court was going to be.

Furthermore, these states, though opposed, can do little to prevent the Court from happening. Thankfully neither their ideology nor their friendships are widespread. Opposition of these states stays within their borders, and does not influence other states nor the nature of the Court.

The opposition that is surprising comes from both Israel and the United States. The International Criminal Court is the belated continuation of the Nuremberg war crimes tribunals prematurely terminated in 1948 when a good half of the accused were still waiting to be tried, including Kurt Waldheim who later became Secretary General of the United Nations and President of Austria. It was the Cold War that ended the prosecutions of Nazi war criminals before they were completed. The Allies shifted their attention from fighting Nazis to fighting Communists, and concluded that the fight against Communism would be weakened by the continuing prosecution of Nazis.

Once the Cold War itself ended, the pursuit for international justice could recommence. The pursuit of justice is done for more than just the victims and indeed must proceed even where the victims are indifferent. Nonetheless, the surviving victims of the Holocaust, who in a larger sense, includes the whole surviving Jewish community, should have a particular interest in international justice. By creating a system of international justice, we create a structure of deterrence for future Holocausts and an institutional legacy commemorating the victims of the Holocaust. After the Holocaust, the watchwords were "Never again". The International Criminal Court in the making is a "never again" court. One would expect Israel, as the Jewish state, to be front and centre in promoting the Court. Yet, it is not.

For Americans, we would expect much the same. The United States, as the sole superpower, has a global perspective wider than that of any other country. The Government of the U.S. has been a moving force behind the creation of the International Criminal Court for the Former Yugoslavia, the International Criminal Court for Rwanda, the attempt to establish a tribunal to bring the Cambodian Khmer Rouge to justice, and the effort to establish of an international criminal tribunal for Sierra Leone. As well, the U.S. is a thriving democracy appreciative, within its boundaries, of the importance of the rule of law. If there were only one country in the world that appreciated the need to bring international criminal fugitives to justice, one would guess that it would be the United States. Yet, the United States has become the leader in opposition to the Court.

American opposition is not just a refusal to join. American proposals attempt to undermine the Court in the making. Though the statute of the Court is finalized, preparatory commissions continue, to define the elements of crime, establish the rules of procedure, decide on the financing and organize the relationship between the Court and the United Nations. US officials have been using these preparatory commissions to attempt to achieve what they were unable to achieve at Rome, immunity from Court prosecution for Americans.

Right now the Court has jurisdiction over perpetrators who are nationals of states that have ratified the treaty and perpetrators whose crimes were committed in the territory of states that have ratified the treaty. Americans are still attempting, through the preparatory commissions and side agreements, to render ineffective the part of the statute which gives jurisdiction to the Court to prosecute perpetrators whose crimes were committed in the territory of states that have ratified the treaty.

If Americans got their way, they would not just prevent the Court from prosecuting Americans. They would undermine the credibility of the Court and weaken its effectiveness around the world, whether the perpetrators are American or not.

Why is there this Israeli and American reluctance? For Israel, there are two reasons. One is the spin that enemies of the state of Israel have given to one of the crimes in the statute of the Court. The statute criminalizes as a war crime the transfer of civilian populations directly or indirectly to occupied territories. Enemies of the state of Israel claim that this provision makes the whole Israeli state apparatus a criminal organization. They argue that the prohibition criminalizes the settlements on the West Bank and any incentive given by the State of Israel to the creation and continuation of those settlements, including such things as mail delivery, garbage collection, road maintenance, provision of schools for children and so on. The Rome statute provision has become a weapon in the war to delegitimize the state of Israel.

The prohibition against the transfer of civilian populations to occupied territories is already in the Geneva Convention on the Protection of Civilians in Time of War, which Israel has signed and ratified. However, the prohibition in the Convention is not a grave breach of that treaty. Violation of the obligation puts a state in breach but does not lead to individual criminal liability.

Furthermore, the Rome Statute adds the words "directly or indirectly". Enemies of the State of Israel latch on to the word "indirectly", which is not in the Geneva Convention on the Protection of Civilians in Time of War, to argue that the Rome statute prohibits incentives to settlement, even if the Geneva Convention on the Protection of Civilians in Time of War does not.

My own view is that the Rome statute criminalizes forcible transfer, but not voluntary movement. The word "indirectly" is meant to refer to geography, to a person being forcibly transferred from one country to another country through a third country and not to incentives to transfer. It would assist the Court that is in the making if the legal officers of Canada and other democratic states, if they agree, to state that agreement publicly.

Beyond the fear of what the correct interpretation of the Rome statute is, there is the fear of politicization of the Court. This is a fear that both Israel and the United States share, and for the United States is virtually the sole reason for their opposition to the Court. If the Court should be politicized, it may not matter what the correct interpretation of the statute is. Anti-Israel or anti-American sentiment, if allowed to prevail, will lead to convictions against Israelis and Americans whether they are objectively guilty or not.

The Israeli fear of politicization can hardly be described as paranoia. Indeed, in United Nations institutions, extreme and uninhibited anti-Israeli sentiments have been rampant. It was not that long ago that the United Nations General Assembly had on its books a resolution that Zionism is a form of racism. Yet, Zionism is the expression of the right to self determination of the Jewish people, and the right to self determination of peoples is the only human right to be found in both the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights. This resolution was repealed by the General Assembly only in 1991.

But we do not have to go back to 1991 to find UN anti-Israel sentiment. As we sit here today, the UN condemns Israel for excessive force in response to Palestinian provocation without saying anything about the provocation itself, without saying anything about the Palestinian use of children in that provocation. The UN asserts that Jerusalem is illegally occupied by Israel when the status of Israel is a matter of dispute between Israel and the Palestinian Authority and will be resolved only in a peace treaty.

The American fear of politicization of the Court is partly an international reflection of a domestic problem, the Ken Starr prosecution of President Bill Clinton. Ken Starr, at least in name, was an independent prosecutor. Yet, it is hard to imagine a more political actor. Americans wonder, if an independent prosecutor in a country with democratic traditions and the rule of law could behave the way Ken Starr behaved, what horrors can we expect from the Court prosecutor?

One answer is that Ken Starr is an American phenomenon, not an international phenomenon. It is unfair to the international community and the prosecutor envisaged by the Court to expect that the prosecutor would behave the way Ken Starr did. Independent prosecutors in place for the International Criminal Tribunals for Rwanda and the Former Yugoslavia have behaved professionally without cause for complaint. The Tribunal for the Former Yugoslavia, in particular, has had jurisdiction over US soldiers because of US participation in peace keeping in the area, and the NATO bombing in response to the events in Kosovo. Yet that prosecutor has not launched unfounded politically motivated charges against Americans.

Both Israel and the United States have to be reminded that there is a difference between the political organs of the United Nations and its independent expert organs. The political organs, admittedly, have been often been irrationally, grotesquely anti-Israeli and anti-American, The independent human rights expert organs, including the international tribunals, have behaved professionally and apolitically.

I have prepared a paper attempting to respond to criticisms I have heard of the independent prosecutor established by the Rome statute and a second paper attempting to respond to Israeli concerns about the offence in the Court statute of transfer of civilian populations to occupied territories. [The papers are attached to this text.] What I would say here is that there are compelling reasons why both Israel and the United States should join the Court, and some basis for the concerns that have prompted them so far not do so. However, their concerns can be answered, and we who believe in the Court should make every attempt to answer them.

.................................................................David Matas was a non-governmental member of the Canadian delegation to the Rome conference that negotiated the treaty establishing the International Criminal Court.