The International Herald Tribune

Editorials/Opinion

Tuesday, July 21, 1998

AMERICA'S HUMILIATING, STUBBORN PERFORMANCE IN ROME

By Anthony Lewis

Umbertide, Italy - When the Rome conference agreed on a charter for an international criminal court, after a month of tense debate, attention focused on the compromises and the politics. But what happened in Rome last week was more important than the details. I think it will be seen as a turn in the road of history.

An overwhelming number of countries embraced the principle that government leaders and their agents are to be personally accountable, at law, when they commit genocide or crimes against humanity. A permanent court will judge them.

The need for such court in our age was movingly explained earlier this year by David Scheffer, the ambassador who led the U.S. delegation at the Rome conference.

"We live in a world following the Cold War," Mr. Scheffer said, "where mass killings, mass rapes, and other atrocities are occurring with shocking frequency. The rule of law, which the United States has always championed, is at risk again of being trampled by war criminals whose only allegiance is to their own pursuit of power."

One cannot read those words now without a sense of irony and regret.

For the great disappointment at the Rome conference was the performance of the United States. If fought to weaken the court, using hard-boiled tactics to try to bring American allies around to its position.

In the end the United States insisted on a vote - and was humiliated. The vote was 120 to 7 for the treaty without further amendments. America was in the company of Iraq, Libya, Qatar, Yemen, China and Israel.

The United States has been a staunch supporter of the ad hoc war crimes tribunals for the former Yugoslavia and Rwanda - tribunals that are increasingly effective. How, then, did it end up in Rome in a tiny negative minority?

Mr. Scheffer argued that, as a superpower with forces around the world, the United States might become the target of political prosecutions.

If the court had existed during the Gulf war, for example, Iraq might have called for prosecution of America soldiers there.

The concern is fair enough. But the treaty as drafted goes very far to meet it. No case can be brought in the international court if there has been a genuine investigation and consideration of domestic prosecution by the country of the suspect's nationality. There are numerous procedural steps to delay or halt prosecutions.

The United States insisted that prosecution of a citizen of a state that has not signed and ratified

The treaty be barred unless it consented. But others thought that would weaken the court's legitimacy. It would have prevented the prosecution of Saddam Hussein for war crimes his forces committed in Kuwait - unless he consented.

It was puzzling that the United States so misjudged the mood - the commitment - of its friends.

Countries that have suffered from tyranny, among them Germany and Argentina and South Africa, spoke with special authority for a strong court. Canada and Britain played key roles.

The real reason for the U.S. position may have been Senator Jesse Helms, who said any treaty exposing Americans even theoretically to such a court would be "dead on arrival" in the Senate. Perhaps so.

But a president with vision, and with a backbone, would not have let that undo America's championship of the rule of law.

President Bill Clinton had a great opportunity. His delegation won significant protections against frivolous prosecutions. He could have embraced the outcome in Rome as a victory for American principles - and then, if the Senate said "no," waited for time to bring us in. After all, it took 40 years for the Senate to ratify the convention against genocide.

As it was, American ideals were represented in Rome by such nongovernmental organizations as the Lawyers Committee for Human Rights and Human Rights Watch, whose arguments helped give the delegates the strength to stand up for a real court. Their spokesmen were sad that the voice of the United States was so muted.

American participation will be missed by the new court, which will take from after 60 countries ratify the treaty. But there is enough support from substantial countries to make it work. To be a real deterrent to barbarity, the court will need years to establish itself.

But so did the American constitutional system.

(The New York Times)