by Barbara Crossette

The New York Times (Herald Tribune)

Thursday, August 14, 1997

UNITED NATIONS, New York 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 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 administr

ation 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 warridden 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 u 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 processconsiderably. David Scheffer, who last week was sworn in as the administration's special envoy dealing with war crimes, said Tuesday that the United States had three major areas of concern: 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 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," Mr. Scheffer said 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 their veto to limit jurisdiction. "The international criminal court could be used to harass nations of the south," said Connie Ngondi, executive director of Kenya's branch of the International Commission of Jurists Monday. She said there was also apprehension that an international criminal court would have too much power to intrude in a country's internal affairs. The United States says the court's jurisdiction should be limited to cases of genocide, crimes against humanity and war crimes, with sexual assault built into the definitions.