International Herald Tribune

Monday, June 15, 1998

Bringing Genocidal Killers to Justice

Jurists Meet in Rome to Establish International War Crimes Court

By Charles Trueheart

Washington Post Service

ROME - After a century cursed by genocide, the "world's nations are preparing to begin a new century equipped to punish and perhaps deter mass human extermination.

Beginning here Monday, diplomats and jurists from about 150 countries will meet for five weeks to write a sweeping treaty on international criminal law, one whose enforcement could override the laws of individual nations. If a treaty text can be approved by July 17, the United Nations-sponsored conference would establish a permanent international criminal court to investigate, prosecute and try perpetrators of genocide, crimes against humanity and war crimes.

Beyond its powers to bring the world's most heinous criminals to justice, it would become "a veritable sword of Damocles hanging over the heads of all warlords and their henchmen," said Doctors of the World, a French humanitarian group that is among more than 230 non-governmental lobbying organizations converging on the conference site here.

Depending on terms of ratification, a permanent court could be at work soon after the turn of the century, almost certainly in The Hague, the Netherlands capital, which is already home to the International Court of Justice, a UN civil court, and is the headquarters of the existing war crimes tribunals for the former Yugoslavia and Rwanda.

But the road to a treaty text, and to ratification by the United States among other wary nations, is so full of minefields that many fear - and some clearly wish - that the conference will produce either a toothless compromise or no treaty at all.

The draft text of the treaty that has been produced over the last three and a half years by an UN-appointed commission is more than 200 pages long. Though inspired by the loftiest motives of justice and what legal experts call "norm-declaration " - formally setting rules for human conduct - the Rome delegates will put together an intricate piece of legislation riddled with unresolved issues.

"I'm not sure we've seen a treaty negotiation under UN auspices going into the final conference with so many big issues unresolved," said a senior U.S. official, who requested anonymity.

At the heart of many of the debates will be the issue of sovereignty and how much of it countries are willing to give up.

Those pushing for a court with the broadest prosecutorial powers and judicial independence frame their argument around the crimes and the criminals who would be brought to justice.

"The world has seen 250 conflicts since World War II and 170 million victims, and most of the perpetrators have benefited from impunity," said M. Cherif Bassiouni, author of the draft treaty and head of the drafting committee at the conference. "The people want accountability. "

Most nations favor some kind of criminal court. But governments, especially those of the United States, France and other major powers, also view the treaty through the lens of a potential defendant.

An American scholar close to the drafting process compared the criminal court negotiations to the contentious ones that led to the establishment of the World Trade Organization. He put the dilemma this way: "How can we defend ourselves against phony claims and still be able to bring bona fide claims against other countries?"

Like factions in many major-power governments, the Pentagon and the Senate Foreign Relations Committee, led by its chairman, Jesse Helmes, Republican of North Carolina, focus on a more specific challenge posed by a criminal court: Would the United States ever permit its citizens, notably professional soldiers,

to stand trial before a "higher" court of criminal law?

"It's the My Lai syndrome," said the scholar, referring to the Vietnam War' s most memorable case of U.S. atrocities, against civilians. If Lieutenant William Calley had been acquitted, he asked, "could a permanent court in The Hague have prosecuted him?" And could such a court have prosecuted Robert McNamara, who was then secretary of defense? he asked.

Mr. Helms has said such a treaty would be dead on arrival at his committee, a key passage in its path toward Senate ratification.

Joined by France, Canada and other countries, American negotiators led by David Scheffer, U.S. ambassador for war crimes issues, will be pressing for treaty language that guarantees that states have first crack at trying such cases.

The questions left for the negotiators to settle here are legion, beginning with basic definitions of what constitutes genocide, crimes against humanity and war crimes, the core crimes of the statute.

What would be covered? Inhumane treatment? The taking of hostages? Sexual slavery? Starvation of civilians?

Compelling prisoners to fight for you? Preventing births within a victim group? Damage to the environment? Committing outrages against personal dignity, such as South Africa' s former apartheid system of racial separation? All these

considerations remain unsettled.

More politically sensitive yet are possible trigger mechanisms for prosecution: Who would have the right to ask for an investigation of a crime - the UN Security Council? The state where the crime occurred? What about war crime that take place in states that are not party to the treaty? (China, among others, probably will not be a signer.)

"There is more to fear from an impotent than from an overreaching prosecutor, " said Louise Abour, chief prosecutor of the United Nation,' twin ad hoc criminal hoc tribunals for the 1992-95 war in Bosnia and the 1994 genocide in Rwanda.

One point has been resolved: The court will only try genocide and war crimes that occur after the treaty goes into force, after a ratification process that could drag into 2000.