THE NEW YORK TIMES

WEDNESDAY, MARCH 18, 1998

U.S. Budges at UN. Talks on a Permanent War-Crimes Court

By BARBARA CROSSETTE

UNITED NATIONS, March 17 The final planning session for the first permanent International Criminal Court began here today with legal experts saying that the United States is drawing closer to many other nations on how to define the roles of the Security Council and Governments in deciding what cases are heard.

The court, a subject of inconclusive debate for half a century, would replace the ad hoc tribunals that now deal with genocide, war crimes, crimes against humanity and other infractions of a magnitude thought to be deserving of special trials. Supporters of the proposed court say it would fill the gap that becomes evident when calls are made for proceedings against people like Pol Pot and Saddam Hussein.

But Washington - fearful of charges being brought against American troops abroad - remains strongly opposed to giving an international prosecutor the right to initiate cases, David Scheffer, head of the American delegation to the negotiations, told a panel of experts this morning before the opening session.

"'It's very important that as our military looks out over the 21st century and views what its challenges are going to be, that it has some degree of authority in the international community to undertake these tasks," said Mr. Scheffer, the Clinton Administration's ambassador-at-large for war crimes issues, at a debate sponsored by the Twentieth Century Fund.

"Frivolous" lawsuits could inhibit the United States and other nations carrying out their responsibilities, he said. Moreover, he added, the American system of military criminal justice is competent to deal with infractions by troops. "We want our system to kick in first," he said. Legal experts from more than a hundred nations are represented at this final working session. In June, all 185 members of the United Nations will be invited to take part in a conference to establish the International Criminal Court by statute. Nations will then be able to sign and eventually ratify the treaty.

Despite recent demands in Congress that Saddam Hussein be tried as a war criminal, a number of American experts say it will be difficult to win approval of a permanent criminal court from legislators who are sensitive to what they see as foreign interference in American affairs.

The Administration, most notably Secretary of State Madeleine K. Albright, has backed the creation of a permanent court. She led campaigns, to establish war crimes tribunals for the Balkans and Rwanda.

But three reservations, some of them apparently dictated by politics and the preferences of the Pentagon, have crystallized in several years of preparatory conferences.

The United States has argued for Security Council jurisdiction, and veto rights, over what cases would go to the court. It has also favored preserving the rights of governments to refuse to cooperate with trials that affect them. Finally, it has sought to limit the prosecutor,

Diplomats and legal experts from human rights groups said today that they have sensed an American shift away from insisting on primacy for the Security Council and toward a compromise introduced by Singapore that would require Council action in order to stop a case, instead of to begin one.

Mr. Scheffer declined to comment on any possible American shifts, saying he would not "negotiate in public." But he said that major issues were "under review."

Mr. Scheffer said it was important for the Security Council to establish the context in which the court would act usually by considering a violent situation in which mass crimes were involved - "We do have concern about, a prosecutor who would act on his or her own authority," he said, adding that the prosecutor should be restricted to the "commission of crimes that have reached the magnitude that is properly within the jurisdiction of this court."

Richard Dicker, associate counsel of I Human Rights Watch, and other people from human rights groups see a strong and independent prosecutor as essential to the court's success, and say there are safeguards built into the draft treaty.

Mr. Dicker said that if there is not an independent prosecutor and if governments or the Security Council decide what cases can be heard, the court will resemble "a permanent ad hoc tribunal that the permanent members of the Security Council can turn off and on like a spigot."