April 14, 1998

Pentagon Battles Plans for International War Crimes

Tribunal

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15)

* Prosecutor Proposes Permanent International Criminal

Court (Dec. 9, 1997)

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By ERIC SCHMITT

[W] ASHINGTON -- When the Pentagon urgently called in

more than 100 foreign military attaches from

embassies here two weeks ago, they expected to be

briefed on the next crisis threatening world peace.

Instead, the decorated military aides were surprised by

Pentagon warnings of a potential menace to their troops

that most had never considered: the proposed

International Criminal Court, scheduled to be

established as a permanent tribunal to try tyrants like

Pol Pot for gross human rights abuses or Saddam Hussein

for war crimes.

The Pentagon warned the attaches that if the court was

set up and was not properly restrained, it could target

their own soldiers -- particularly when they were acting

as peacekeepers -- and subject them to frivolous or

politically motivated investigations by a rogue

prosecutor or an overzealous tribunal.

"It was unusual," a seasoned Western military officer

said of the 30-minute briefing he attended.

After the meetings, held on March 31 and April 1,

several of the attaches dashed off urgent messages to

their superiors back home, which in turn set off alarms

up the chains of command.

For nearly four years, the United States has supported

the efforts of diplomats at the United Nations and their

painstaking plans to create an International Criminal

Court.

Now that it is finally within reach -- all 185 members

of the United Nations will be invited to a conference in

Rome in June to establish the first permanent

International Criminal Court by statute -- the United

States is pressing to limit the tribunal's authority and

independence.

While President Clinton and Secretary of State Madeleine

Albright have endorsed the idea of a court, they have

given their blessing to the Pentagon to become the

attack dog in the United States' campaign to create a

court more to Washington's liking.

The Pentagon is pitted against human rights advocates

who contend that the American military establishment has

set off an unnecessary uproar that may ultimately weaken

efforts to create the first permanent world tribunal to

deal with genocide, war crimes and crimes against

humanity. It would replace ad hoc tribunals like those

set up for Rwanda and the Balkans.

"An unintended result of all this is that a number of

defense ministers are raising unfounded concerns about

the project," said Christopher Keith Hall, a legal

adviser for Amnesty International in London.

A three-page memorandum passed out to the attaches at

the Pentagon briefings says: "The U.S. is committed to

the successful establishment of a court. But we are also

intent on avoiding the creation of the wrong kind of

court."

The wrong court, in the view of the administration and

particularly the Pentagon, would put tiny players on the

world stage like Benin or Trinidad and Tobago on an

equal footing with the United States. And that, they

fear, could lead to unfounded accusations against

soldiers assigned as peacekeepers in difficult

situations.

"They really wanted to reinforce to us the idea, 'Do you

know this is going on?' " said a Western military

attache who attended the Pentagon briefing.

A European diplomat at the same meeting said, "It was a

lobbying effort; clearly it was."

The Pentagon also sent a senior team to Europe, where

the officials hopscotched from London to Paris to

Brussels to Rome to Bonn, impressing top military brass

in each capital with the American arguments.

Human rights advocates say the Pentagon's scare campaign

may yield dangerous, unintended consequences.

"What the people at the Pentagon didn't realize is that

they went after a fly with a shotgun," said Cherif

Bassiouni, a law professor at De Paul University in

Chicago and deputy chairman of the United Nations

committee that prepared the draft text that will be the

centerpiece of the conference in Rome.

"The attaches got scared, sent home cables and got

everyone in a tizzy," Bassiouni said. "What the Pentagon

has done may undermine the policy established by the

president."

But Pentagon officials deny using any pressure tactics

and insist that no foreign military official has

complained.

"It was not lobbying; there was no arm-twisting -- it

was awareness-raising," Frederick C. Smith, principal

deputy assistant secretary of defense for international

security affairs, said of the briefings.

While the Defense Department has originated many of the

Clinton administration's reservations about the court,

Pentagon officials fear that their counterparts in

foreign militaries have been left out of similar

discussions abroad.

"It became apparent to us in the Pentagon that other

ministries of defense and senior military officials have

not been involved in the negotiations," said Smith, who

headed the Pentagon team that visited Europe.

So with the approval of the chief American negotiator,

David Scheffer of the State Department, the Pentagon

started its charm blitzkrieg.

The main artillery has been the sobering talks at the

Pentagon given by Franklin Kramer, an assistant

secretary of defense, and Christopher Ryder, a senior

international lawyer at the Defense Department.

In the three-page memorandum, the Pentagon warned other

militaries against independent prosecutors with

"unbridled discretion to start investigations" and

contended that "some delegations have supported overly

broad and vague definitions of war crimes."

"We strongly recommend that you take an active interest

in the negotiations regarding an international criminal

court," the paper said.

Supporters of the court say the concerns of the Pentagon

and the administration are overstated.

"The administration's position is unnecessary," said

Morton Halperin, a former Pentagon official who is now

senior vice president of the Twentieth Century Fund, a

public policy foundation. "The draft as it now exists

already provides assurances that soldiers from the U.S.

and other countries with functioning judicial systems

would not be brought before this court."

But the Pentagon has a key ally in the Senate, which

must approve U.S. membership in the court. Sen. Jesse

Helms, R-N.C., who heads the Senate Foreign Relations

Committee, vowed last month that any international

criminal court would be "dead on arrival" in the Senate

unless Washington has veto power over it.