The Washington Times

October 22, 1997

U.S. may nix plan for U.N. tribunal

By Betsy Pisik

THE WASHINGTON TIMES

NEW YORK

A senior State Department official suggested the United States will

refuse to agree to plans for a global criminal court unless it is confident

it can protect American citizens.

David Scheffer, ambassador-at-large for war-crimes issues, told The

Washington Times that the court "should not be targeting American citizens,

military or civilian, that are engaged in what our government wants them to

engage in overseas."

However, he added, "it is not credible to argue that the United

States is supporting the creation of this court while guaranteeing that no

American will ever come before it. We are not saying Americans are off bounds."

U.N. member states have for years been grappling with the creation

of an international criminal court, which would hear cases of war crimes,

genocide and crimes against humanity.

With ad hoc U.N. tribunals for Rwanda and the former Yugoslavia

already in place and other potential trials pending, momentum is behind a

standing court.

The court would differ from the World Court, or the International

Court of Justice in The Hague, which does not hear cases against

individuals. It adjudicates only disputes between nations.

The legal committee of the General Assembly yesterday began two days

of talks on whether to proceed with a conference in Rome next spring, where

delegates would draft a treaty to be ratified by member states.

Many questions remain unresolved, such as how a case would be

referred to the court and how far states would be compelled to cooperate

with the prosecution.

Many nations, including the United States, are still reluctant to

cede national sovereignty to a court whose exact scope and powers are not

yet known.

"The key issue is, how do you fuse the civil law and common law

systems in this world into one court?" said Mr. Scheffer. "This is

unbelievably complex."

The United States wants the U.N. Security Council to have the

exclusive right to send a case to the court for consideration. With its veto

power in the council, it could

effectively block any prosecution involving American citizens or U.S. allies.

Predictably, the plan has run into resistance from other U.N.

members, many of whom would like to be able to refer cases to the court

directly.

Singapore has proposed a compromise in which the Security Council

would have the right to object to prosecutions, instead of approving them.

But this would permit any of five countries to use its veto to prevent a

prosecution from being blocked.

The Singapore proposal appears to have the early backing of several

influential nations as well as many nongovernmental organizations that fear

the United States wants to turn the court on and off like a faucet, said

Richard Dicker, a lawyer for Human Rights Watch International.

"We haven't brought the world along with us yet," Mr. Scheffer

conceded.

"The trigger is the most politically charged issue," he said,

adding, "it's conceivable" that the United States would not sign a treaty

that failed to keep intact the U.S. veto.

Mr. Scheffer, who spoke by telephone from his Washington office late

last week, said the international court should be considered a last resort

rather than a venue for

vendettas or a place of appeals.

U.S. officials are concerned that the law not be used to prosecute

American soldiers, who are called upon to rescue hostages, protect Americans

overseas, engage in anti-terrorist activities and assist other nations in

military exercises.

Mr. Scheffer said the court should not be invoked where an

individual would otherwise be tried in a country that is capable of a "fair

and comprehensive" trial.

"So let's say you have a Somalia, where there is no government, or a

Burundi, where the system is so politically monopolized that by anyone's

standards [it could not]

responsibly prosecute a war criminal," said Mr. Scheffer. "That's where you

turn to the court."

But how much cooperation the court can demand, or even expect, is

very much in question.

Many African and Asian states, for example, insist that any state

holding witnesses, victims or evidence must agree to a prosecution. The

demand could create an obstacle best illustrated by the frustrations of the

tribunal prosecuting war crimes in the former Yugoslavia.

Mr. Scheffer said this is favored by, among others, Indonesia,

Malaysia and France.

The United States has reserved its position on consent "until we see

how the rest shakes out," he said.

The ambassador acknowledged that the court will be a tough sell on

Capitol Hill.

"I have no illusions," he said.