The proposed International Criminal Court (ICC) must go beyond the U.N. tribunals for Rwanda and former Yugoslavia and prosecute top officials in its efforts to deter future atrocities, says Bosnia’s U.N. ambassador, Muhamed Sacirbey.

The Bosnian envoy points out that so far, the promise of the war crimes tribunal for the former Yugoslavia has not been realised, with key indicted suspects still at large.

“The tribunal hasn’t really succeeded in bringing to justice the highest political officials in the region responsible for genocide,” Sacirbey told IPS. “I’m not sure that the ICC would serve a useful deterrent function if it simply tries the lower- level suspects, and (tries) the highest-level suspects only when they are dead or out of power, like Pol Pot.”

In Bosnia’s case, the UN ambassador has insisted for years that nations have proof that regional leaders were complicit in the atrocities in the Bosnian war, in which more than 200,000 people are estimated to have been killed. Yet many of those leaders have been thought useful in future peace negotiations, and countries have been unwilling to turn in evidence against them, Sacirbey says.

The Bosnian government has accused Yugoslav President Slobodan Milosevic of orchestrating the war effort in Bosnia-Hercegovina, but other governments – including the United States – have relied on Milosevic as a diplomatic counterweight to extremist nationalist forces in Serbia.

Sacirbey contends that what he claims is the “selective” gathering of data by some nations also could pose a potential problem for the ICC.

“At least some UN Security Council members might not be state parties” to the statute that is to create the Court, he says. “Some states that may have the greatest capacity to obtain evidence through intelligence-gathering facilities might therefore not be parties.”

Nor is this the only problem the ICC could inherit from the Bosnia tribunal. The current ICC conference at Rome, which has debated whether to include aggression as one of the crimes the Court might prosecute, shows the complexity of the debate over how aggression is defined, Sacirbey says.

“There is a much broader definition of aggression that applies now than the one that appears might be codified in the statute,” the ambassador argues. “We cannnot support the idea of a very narrow definition of aggression, so that it only applies to a situation analogous to the Nazi invasion of Poland.”

In modern times, “more savvy leaders” have been able to foment aggression in neighbouring countries without resorting to obvious invasions, he says.

The Bosnia war is a case in point, with the fledgling republic attacked by soldiers who belonged to or were paid by foreign countries – such as Gen Ratko Mladic, a paid soldier of the Yugoslav National Army – but who would claim to be members of Bosnian armed forces, thereby transforming the fighting from an external to an internal conflict.

Bosnia refuses to accept the idea that it must fall to the UN Security Council to define what constitutes aggression, says Sacirbey. “It’s clear that the debate in the Security Council on issues of aggression and genocide is politically divisive.”

At times the Council has opted instead to use similar, but less legally suggestive, phrases like “acts of aggression” to depict the same crimes, he notes.

“Will we end up with a situation…that aggression is so narrowly defined that a charge could never be brought against a standing leader?” Sacirbey asks.

Justice Richard Goldstone, the former prosecutor for both the former Yugoslav and Rwandan tribunals Tuesday addressed negotiators here to establish the International criminal Court.

“If the ICC or its prosecutor are made subject to the control of political bodies, whether the Security Council or state parties, it will have no credibility and international justice will be seriously compromised,” he contended.

Goldstone believes that in, some respects, the ICC faces even stronger challenges than encountered by the tribunals created by the Security Council and enforced under the powerful Chapter Seven of the UN Charter. “Clearly a war crimes tribunal acting under Chapter Seven is in the best, most advantageous position,” he says.

Referring to the lack of arrests of such key Bosnian Serb suspects as Mladic and political leader Radovan Karadzic, Goldstone notes that “If arrests aren’t being carried out (in those cases) … what hope is there for a treaty-based ICC (to do better)?”

He doubts that the ICC will have any standing police force empowered to make arrests, as the Bosnia tribunal has in effect had with the intermittent cooperation by NATO forces.