Court has to get by without U.S. Tribunal: Denied the right to exempt its nationals from the jurisdiction of the planned international criminal court, America opts out of the treaty.


WASHINGTON -- It wasn't supposed to turn out like this.

The United States, which led the way in creating tribunals to try the perpetrators of atrocities in Bosnia and Rwanda, which set up a special office in the State Department on war crimes, and which for years supported the idea of a permanent international criminal court, now finds itself in the position of being among seven nations, including Libya and China, opposing its creation.

With global jurisdiction, the court would be able to try individuals for the most serious violations: war crimes, genocide, crimes against humanity and aggression. It will be based in The Hague and be able to impose life imprisonment, but not the death penalty.

The idea of such a court has been under discussion since the Nuremberg trials of Nazi war criminals at the end of World War II. Unlike the tribunals set up for Rwanda and Bosnia, it would not be confined to judging criminals in one specific conflict.

As a result, proponents say, it will have jurisdiction over crimes that now escape prosecution. Thus it will serve as a more effective deterrent against future atrocities, they say.

To hear American officials tell it, they had little choice but to oppose the final document creating the court, which will come into being once 60 nations approve it.

"In the end, the treaty, as currently envisaged, is deeply flawed and will produce a flawed court," says State Department spokesman James Rubin, criticizing a "rush to judgment" by drafters at a Rome conference who seemed more interested "in making a point than making a difference."

The main American objection is that the treaty would grant an independent prosecutor power to conduct what Rubin calls "politically motivated or ill-considered or unjustified prosecutions" against Americans.

The Pentagon fears this would put U.S. soldiers at risk of prosecution at a time when American forces can be sent on peacekeeping missions to world hot spots.

And to conservatives in the U.S. Senate, which would have to ratify the court, the whole idea of Americans being prosecuted by an international body is anathema.

"We will never be a party to this court so long as American citizens can ever come under its jurisdiction," says Marc Thiessen, spokesman for majority Republicans on the Senate Foreign Relations Committee, which has jurisdiction over treaties. "We see no reason to put American citizens or American foreign policy up to the judgment of the world."

"What they've set up," he says, "is a global star chamber."

U.S. officials wanted to give the United Nations Security Council jurisdiction over referral of cases, which would have allowed the United States to exercise a veto. At a minimum, the United States wanted the court to have jurisdiction only over those countries that were a party to the treaty.

By refusing to sign the treaty, the United States can withhold its cooperation but can't prevent Americans being prosecuted, since the court could act with the consent of the country where a crime occurred.

Writing in Commentary magazine, two former Justice Department lawyers, Lee A. Casey and David B. Rivkin Jr., argue that because the court's structure is so different from the American legal system, "its procedures will fail to provide American defendants who come before it the basic guarantees they enjoy under the Constitution's Bill of Rights."

In the end, says Yale Law School Professor Ruth Wedgwood, the Rome conferees were caught up in a confluence of "seething resentment against the authority of the Security Council," which many countries view as being dominated by the United States.

But how well-founded are the American objections?

Dinah Pokempner, deputy general counsel for Human Rights Watch, says the chance that Americans would face prosecution by the court is remote. The court can get involved only if a country that has jurisdiction over a case is unwilling or unable to pursue the case. The United States already has strong laws that could be applied against suspected war criminals, she says.

"Any U.S. national who commits a war crime or genocide is very likely to face trial in the United States," Pokempner says.

American fears of reckless prosecution, she suggests, may have been fed by Washington's recent experience with independent counsels, who have unlimited budgets and time to pursue crimes by a few individuals.

The criminal court prosecutor, by contrast, will have a worldwide mandate and thus will be able to tackle only the most serious cases. It will be dependent on assessments from member countries for its budget, which will therefore probably be limited.

And it will not have its own enforcement power, requiring it to depend on the Security Council or the U.N. General Assembly to exercise the necessary coercion against recalcitrant suspects.

"We're not talking about Ken Starr here," says Pokempner. "If it came to the apocalyptic scenario where there was some reason to believe an American had committed serious war crimes, crimes against humanity or genocide, why would it be in the long-term interest of the United States to have this person escape justice?"

The court's jurisdiction isn't broad enough to suit human-rights groups. For it to operate, either the country of which the suspect is a citizen or the country in which the offense took place must be a party to the treaty or must agree to the prosecution.

This opens up one loophole that both U.S. officials and human-rights groups say is unfair.

Rubin says: "The starkest example would be that the Pol Pots of XTC the world can avoid prosecution, can be protected, while the peacekeepers are prosecuted. This is an inherent flaw in the treaty."

Those countries that backed the treaty to show their displeasure with the United States may have won a Pyrrhic victory, since without American participation the court won't have much clout.

"They need our money, our moxie and our military power," says Wedgwood.

And if Sen. Jesse Helms has his way, the treaty's supporters could face reprisals. Extradition treaties and agreements on the stationing of U.S. forces could be threatened, says Thiessen. "We can't send U.S. forces to countries that feel they have a treaty obligation to turn American soldiers over to the court.

"At a minimum," he adds, "we will have to renegotiate all status-of-forces agreements and get a commitment from countries that they will under no circumstances turn an American citizen over to this court."

In a display of strong-arm tactics in the final days of negotiation, the United States gave the impression that it would reconsider its commitment of forces to the North Atlantic Treaty Organization if U.S. officials didn't get their way in Rome. American officials later disavowed this threat.

Wedgwood hopes that eventually time and the operation of the court will bend the American attitude. If a prosecutor is appointed who is widely perceived as fair, she says, and if such a prosecutor spells out clearly the kinds of offenses to be pursued, "that will give a great deal of comfort to the United States."

By refusing to sign the treaty, however, the United States has deprived itself of any say in who that prosecutor can be.

Pub Date: 7/22/98

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