The International Herald Tribune

Friday, July 24, 1998

U.S. CAUGHT IN BIND ON WAR CRIMES

Years of Diplomatic Advocacy, Then Military Opposition - and Defeat

By Thomas W. Lippman

(Washington Post Service)

Washington - After years of promoting a permanent international tribunal for war crimes and genocide, the U.S. government is picking through the rubble of a spectacular diplomatic defeat: last weekend a vast majority of the world's nations approved the creation of just such a court, despite U.S. objections to its terms.

The outcome left the administration in the position of refusing to participate in, or help pay for, an international tribunal that Secretary of State Madeleine Albright had vigorously advocates as a key to meeting out justice in future conflicts.

The chief U.S. negotiator at the diplomatic conference on the treaty, which ended Saturday in Rome, was scheduled to testify before the Senate Foreign Relations Committee on Thursday to explain why Washington was now opposed to a court that it labored for years to create.

The negotiator, Ambassador-at-Large David Scheffer, is expected to tell the panel that the administration still favored the court in principle and would seek to modify the treaty that created it, in hopes that the United States could join in the future. But if that does not happen, administration officials are holding out the possibility that the United States will try to dissuade friendly countries from ratifying the treaty, seeking to prevent the treaty from getting the 60 ratifications needed for it take effect.

According to participants in the Rome conference and human rights activists, the delegates overwhelmingly rejected the proposed U.S. modifications because they resented what they viewed as strong-arm U.S. negotiating tactics and U.S. insistence that the court's jurisdiction be limited by a guarantee that no American citizens would ever be tried before it.

In particular, the Defense Department was concerned throughout the negotiations that U.S. troops around the world might be subject to prosecution, a threat that the American team said could restrict future U.S. military deployments.

But other countries, including such close allies as Canada and Germany, argued that the treaty already included sufficient protections for citizens of countries with well-established legal system. The treaty requires the court to defer to such countries when they conduct their own investigations and trials.

Conference participants were reportedly outraged when the Pentagon convened a Washington meeting of military attaches at embassies here to alert them to what it portrayed as potential dangers in the treaty for other nations.

Countries such Argentina and El Salvador, which only recently emerged from military rule, were incensed at what they saw as a Pentagon effort to reject their armed forces into their political decision-making, conference observers and participants said.

The vote to approve the treaty was 120 to 7. Only Libya, Qatar, Iraq, Yemen, China and Israel voted with the United States.

"We labored under the paradox of being a leader or international justice but at the same time a leader for international peace and security," Mr. Scheffer said Wednesday.

Richard Dicker, who monitored the conference for Human Rights Watch, disagreed.

"The Defense Department insisted on a 100 percent foolproof mechanism" to preclude prosecution of U.S. troops, he said. "To get that, they essentially needed to cut the heart out of equal application of the law to all who came before it."

The United States objected to two key points in the treaty: the creation of a permanent independent prosecutor's office with the power to initiate investigations, and the establishment of the court's jurisdiction over atrocities committed by citizens of nonsignatory countries.

The first provision stoked concern that U.S. troops might be subjected to politically motivated prosecutions.

The second concern reflected the American negotiating team's belief that the U.S. Senate would probably not ratify the treaty in the foreseeable future, and thus the United States would be among the nonparticipating countries.

"Once the treaty comes into force, it would extend the court's jurisdiction over the national countries that are not party to the treaty," the State Department spokesman, James Rubin, said Monday. "Never before has a treaty put itself over those who have not been included in it."