The New York Time

Wednesday, June 10, 1998

The Pitfalls of Global Justice

By Ruth Wedgwood

New Haven - The United States has a penchant these days for joining international negotiations that spin out of control. We went to Kyoto to talk about climate change and discovered we couldn' t sign the treaty. We went to Ottawa to talk about land mines and found our military problems ignored by other states.

We may be the "indispensable country," as Secretary of State Madeleine Albright likes to say. But we often set ourselves up as Alamo holdouts, criticized as the indispensable country with indefensible positions.

The latest standoff may begin in Rome next week when a United Nations diplomatic Conference will seek to establish a permanent international criminal tribunal. The stated ambition is to produce a treaty within five weeks ready for signing, despite 1,700 disputed items in a highly intricate text.

The United States has properly championed the idea of an in international criminal court, building on the success of ad hoc tribunals established by the United Nations Security Council for prosecuting war crimes in Rwanda and the former Yugoslavia- But too much of a good thing can be too much.

Rather than start slowly, by establishing permanent court to accept war-crime

referrals from the Security Council, many states see intent on pushing for a court that knows few jurisdictional bounds.

Ratification by a mere 20 states many bring the court into existence. If nothing else, this disregard of the Security Council is unrealistic, since the court would still have to rely on the council to enforce its orders and judgments on the ground. But the problems go far deeper than that.

Senator Jesse Helms of North Carolina, as chairman of the Foreign Relations Committee, has served clear notice that a Republican Senate will reject any treaty that does not give the United States a veto over the international trial of American servicemen. The United States could block Security Council referrals using the veto guaranteed by the United Nations charter, but other vocal nations want a wide-open, uncontrolled complaint system in which any country, friend or foe, could refer "situations" for prosecution by the international court.

There are, of course, some countries that don' t much like us. Our ability to project military force at long distance may secure a healthy balance of power in Asia and the Middle East, but this is not welcomed by all. Though it may seem inconceivable that charges of genocide or crimes against humanity could apply to our attempts to restrain Saddam Hussein or to American nuclear deterrence, one should not underestimate the ingenuity of lawyers.

And the Rome text is erratic. One option, for example, would define as a war crime any military operation begun "in the knowledge that such attack will cause incidental loss of life or injury to civilians." This does not reflect the current law of war and would condemn most uses of military force, including defensive operations.

" Complementarity" - the ability to argue that a well-functioning national

justice system had already dealt with the matter - would limit the prosecutors of

the international court somewhat, keeping most routine cases in American military courts. But there are in the world some genuine disputes about operational doctrine. American defendants could end up in the international court over practices that seem to us obvious elements of war.

If, for example, an adversary's electrical grid serves both military and civilian purposes, can it be partly destroyed by air power before a ground assault is begun? This was a live question in the Persian Gulf war. The international court might not accept the American view of " proportionality," as it's called: that we can destroy

part of a dual-use grid to protect our ground troops.

We should press for a two-tier treaty - a core agreement with Security Council referral, which the United States could confidently ratify, and an optional component with a more open-ended complaint system. States that signed the optional portion would assume its risks - any treaty party could complain about their military operations - for the sake of a stronger court.

Even Senator Helms should be able to support a core agreement. A two-tier treaty would avoid isolating the United States at a time, when our participation is needed to make the court effective. It would allow skeptical supporters to see how the court works in practice before signing on to an all-embracing pact.

The mood of a Roman holiday, and the earnestness of our allies, should not distract us from a realistic bottom line. We must avoid acquiescing in a treaty the Senate cannot ratify. And, if all else fails, we must be willing to admit that a permanent international criminal court is a good idea whose time has not yet come.

Ruth Wedgood, a law Professor at Yale University, is a senior fellow at the Council on Foreign Relations.