The New York Times

October 4, 1997

Wavering on War Crimes

In a speech to the United Nations last week, President Clinton restated his commitment to the prosecution of those guilty of war crimes. But his Administration's record in supporting international tribunals to investigate and adjudicate war crimes has been mixed. As on other human rights issues, its actions have lagged behind its rhetoric if a tribunal might show the slightest possibility of affecting Americans.

Secretary of State Madeleine Albright has given the issue of war crimes high priority with the appointment of David Scheffer to the new post of Ambassador at Large for War Crimes Issues. Mr. Scheffer worked with Ms. Albright when she was Washington's chief delegate to the United Nations. They can be justifiably proud of their role in establishing tribunals to prosecute war crimes in Bosnia and Rwanda. These are tile first attempts since the Nuremberg and Tokyo tribunals after World War 11 to punish genocide, war crimes and crimes against humanity, which are considered international offenses.

The Clinton Administration has been crucial in achieving acceptance of tile tribunals. Washington, moreover, has paid the salaries of some of the tribunals' best attorneys. At one point there were 22 American-paid experts working for the Bosnia tribunal. Some governments are now trying to restrict these positions, complaining that the practice circumvents normal U.N. hiring procedures. Their pettiness would deprive the tribunal of important staff members at a time when it lacks the money to hire them.

At the moment, the tribunals require two things they are not getting from Washington - a greater effort to have those who are indicted handed over to the tribunal, and payment of its back U.N. dues. While in 1995 the Bosnia tribunal in The Hague was carrying out 25 criminal investigations, now there are only 3, in part because of Washington's arrears.

Washington's contribution to the tribunals stands in contrast to the hurdles it is putting in the way of the creation of a permanent international, criminal court. The court would prosecute international crimes when national legal systems are unwilling or unable to do so. A diplomatic conference scheduled for next June would draw up the final plans, which would then be ratified nation by nation.

Unfortunately, while the United States endorses a court in principle, the ground rules it proposes would make the court politicized and virtually powerless. Largely at tile urging of the Pentagon, which holds exaggerated fears about the possible prosecution of American soldiers, the Clinton Administration is pushing for a court whose actions would be easily blocked by the big powers. Before a prosecutor could even begin investigations in most conflict zones, the U.N. Security Council would have to give its approval for such inquiries. This would award the United States, Russia, China, France and Britain a veto over indictments of their own or their allies' actions.

Mr. Scheffer and other American officials have also raised the question of whether the court should respect some of the amnesties that dictators will for themselves. This is a terrible idea. Nations usually agree to such amnesties only because the dictators are threatening to use more violence or stay in power unless exempted from prosecution for their crimes. If the court respected an amnesty for someone who committed crimes against humanity, it would be failing its obligations under international law. The whole point of the court is to fight the impunity powerful criminals enjoy in their home countries. Unfortunately, the Administration seems committed to this ideal only in selected cases.