The New York Times

Wednesday, August 13, 1997

World Criminal Court Having Painful Birth

By BARBARA CROSSETTE

UNITED NATIONS -- For two weeks, through diplomacy's August

doldrums, legal experts from scores of countries have been closeted

in basement conference rooms here, working hard on a blueprint for

the world's first international criminal court.

The establishment of a permanent court to judge the most terrible of mass

crimes -- including genocide and the massacres that have come to

characterize the ethnic conflicts of recent decades -- is a goal that has

eluded members of the United Nations for half a century.

It is now within a year of becoming reality, if the remaining trepidations of

some nations can be overcome.

The obstacles could still be formidable. Many countries, including the

United States, are wary of a criminal court with powers that cross borders.

There is not complete agreement on what crimes the court would take on.

There are wide differences of opinion on how crimes would be taken to the

court, in particular whether a chief prosecutor would have the authority to

originate cases.

The Clinton administration backs the proposed court, which would be

established by international treaty. But U.S. participation would require the

consent of a Republican-controlled Congress, where many international

issues have been bogged down by the Senate Foreign Relations Committee.

U.S. diplomats and legal experts agree that chances that an international

criminal court will emerge from a treaty conference scheduled for next June

in Rome have improved.

"Three years ago, almost all major powers opposed it," said William Pace,

chairman of a coalition of human rights and legal groups. "Now virtually all

governments have affirmed support. We are optimistic that this could be the

last major international organization established in this century, which has

been by all accounts the bloodiest, most war-ridden century in all of

history."

The absence of a court to deal with figures like Pol Pot, the Khmer Rouge

leader whose reign of terror left more than a million Cambodians dead, has

been widely noted. And the creation of tribunals to deal with war criminals

in the Balkans and Rwanda has laid the groundwork for a more lasting

forum.

"The establishment of the Yugoslavia tribunal and the tribunal for Rwanda

has shown that we can operate on an international level," said Gabrielle Kirk

McDonald, an American judge serving on the Balkans tribunal in The

Hague. She is taking part in the discussions here.

"We at the Yugoslavia tribunal brought together 11 judges, all from different

systems in different countries, and we were able to draft rules of procedure

and evidence that we believe met the needs of all of the systems," said Ms.

McDonald, a civil rights lawyer and former federal judge in Texas.

The tribunal juggled common law, civil law and military justice systems, she

said.

"We basically created an international code of criminal procedure," she said.

"I think we have been able to conduct a fair trial in an international

setting."

The only flaw in the system, she added, is that the present tribunals lack the power to order or make arrests, slowing the judicial process considerably.

David Scheffer, who last week was sworn in as the Clinton administration's

special envoy dealing with war crimes, said Tuesday that there were three

major areas of concern to the United States: how cases get to the court,

whether or when international law would complement or supersede national

systems and how the court's procedures are defined.

Washington wants the Security Council to be the arbiter of what cases

would go to the international court, a view at odds with nearly all other

countries. Europeans and some Latin American nations would give

international prosecutors wide latitude in bringing cases. Other nations,

especially in Asia, want governments to have some control over all stages of

the court's activities.

"You cannot have a system that tries to end-run the Security Council,"

Scheffer told reporters at a briefing Tuesday.

In the developing world, U.S. insistence on Security Council jurisdiction

raises fears that Washington would use its influence to choose which cases it

would allow the court to hear. The United States and the other permanent

Council members -- Britain, China, France and Russia -- could use the veto

to limit jurisdiction.

"The international criminal court could be used to harass nations of the

south," Connie Ngondi, executive director of Kenya's branch of the

International Commission of Jurists, said Monday. She added that there was

also apprehension in Africa that an international criminal court would have

too much power to intrude in a country's internal affairs.

The United States insists that the court's jurisdiction be limited to cases of genocide, crimes against humanity and war crimes, with sexual assault built into the definitions. Scheffer said he would meet with representatives of women's legal organizations this week to address concerns about

procedures and language that could be important to safeguarding women's

rights.

But the administration opposes the inclusion of international terrorism and

organized crime, which many other countries wanted to bring into the

court's purview.

The American Bar Association will make a formal recommendation on the

court at a meeting early next year. The association initially supported

including terrorism, said David Stoelting, co-chairman of its coordinating

committee on the court. But after noting the State Department's objections,

he said the association "may adjust some points."

Tuesday, Scheffer outlined the problems that Washington had with too

broad a jurisdiction for the court.

"There is a reality, and the reality is that the United States is a global

military power and presence," he said. "Other countries are not. We are.

"Our military forces are often called upon to engage overseas in conflict

situations, for purposes of humanitarian intervention, to rescue hostages, to

bring out American citizens from threatening environments, to deal with

terrorists. We have to be extremely careful that this proposal does not limit

the capacity of our armed forces to legitimately operate internationally.

"We have to be careful that it does not open up opportunities for endless

frivolous complaints to be lodged against the United States as a global

military power."