The New York Times

Tuesday, December 9, 1997

UN PROSECUTOR URGES NEW CRIMINAL COURT

Armed Conflicts Within Nations Bring Demand for Major Tribunal

By BARBARA CROSSETTE

UNITED NATIONS, Dec. 8- The chief prosecutor for the war crimes tribunals in the Balkans and Rwanda spoke out strongly today for a permanent international criminal court with considerable- independent prosecutorial power, a position that puts her at odds with the Clinton Administration

In a speech to a committee of legal experts from around the world meeting here to define the functioning of a court that could be established by treaty as early as next June, the prosecutor, Louise Arbour of Canada, said that a powerful, independent international prosecutor was crucial to the success of a permanent tribunal.

Among the situations that such a tribunal could deal with are "ethnic cleansing" campaigns that have led to a sharp increase in people displaced within their own countries, an increase noted in data released today by the United Nations High Commissioner for Refugees.

"There is more to fear from an impotent than from an overreaching prosecutor," she said, referring to efforts, particularly by United States, to give the Security Council an effective veto over the court's choice of cases. The Pentagon specifically fears the possibility of criminal proceedings against American soldiers abroad.

"An organization should not be constructed on the assumption that it will be run by incompetent people, acting in bad faith, for improper purposes," Ms. Arbour told the conference.

In an interview after her speech, Ms. Arbour said that a court set up to deal with; "massive crimes that often take place in an institutional vacuum" is unlikely to have a prosecutor who meddles in the affairs of law-abiding people or nations.

Ms. Arbour said that critics of a powerful independent prosecutor "confuse independence with unaccountability."

"It's better to equip the prosecutor well," she said, "but to keep him or her on some kind of institutional leash by some kind of an impeachment process."

Most nations, including the United States, agree that the creation of a permanent international war crimes tribunal - first proposed after World War II - is long overdue.

Lawyers and human rights groups point to the absence of a court to try Pol Pot, who presided over a radical communist regime in Cambodia that left more than a million people dead in the mid-1970s, or Saddam Hussein, who used poison gas on his Kurdish population in 1988, two years before seizing Kuwait.

Diplomats are becoming uneasy about other methods of dealing with rulers who pose a threat to their own populations or to neighbors. Sweeping embargoes or other sanctions often hurt innocent civilians more than the leaders they are designed to punish, a problem the Security Council now faces in Iraq.

Few nations have much enthusiasm left for military operations, especially since conflicts are not between countries but within them, making traditional peacekeeping problematical.

Richard Dicker, counsel to Human Rights Watch and an expert on the proposed international court, said in an interview today that the tribunal needs powers to intervene in conflicts within nations, which now kill many more people than international wars.

"Given the overwhelming predominance of armed internal conflict in the world today," he said, "the scope of the court's reach to prosecute crimes in that context goes to the heart of its very effectiveness."

Underlining his point, the United Nations High Commissioner for Refugees reported today that as the numbers of traditional refugees fleeing from country to country drops, the number of people displaced within their own nations is rising.

The refugee agency, which cares for about 22 million refugees and displaced people worldwide, believes that there may be another 25 million civilians who have been forced to; abandon homes in at least 35 civil wars in which driving people out of their traditional communities appears to have been a principal goal' Many of these wars are started by factional leaders who should be "brought to account," the report says.

Some developing nations share the concern of the United States that national sovereignty could be in fringed by an international criminal prosecutor, but many of the same nations disagree with Washington on the prominent role of the Security Council and the limited role an international prosecutor would have in indicting individuals.

David J. Scheffer, the leader of the American delegation discussing the new court here, said in a speech to an international conference at the Carter Center in Atlanta on Nov. 13 that Washington foresees a prosecutor restricted to pursuing individual investigations only when an overall situation has been referred to the court, whether by a government of by the Security Council - as the Council did in creating the ad hoc tribunals for the Balkans and Rwanda.

In the American view, the Security Council should have the power to block action by the court if the Council was already discussing the conflict or atrocity in question.