The Wall Street Journal - Europe

Friday-Saturday, July 24 - 25, 1998

HOW AMERICA GOT AMBUSHED IN VOTE ON WAR-CRIME COURT

Defeat Reflects a Diffusion of International Power in Post Cold-War World

Fearing a "Global Ken Starr"

By Neil King Jr.

Staff Reporter

The delegates came to Rome from every corner of the earth to grapple with a cause that matched the tenor of the times: the creation of the world's first permanent war-crimes court.

But for the U.S., this grand endeavor all came unstuck over one little phrase in a 83-page statute.

How this came to pass is a tale of diplomatic intrigue that shows just how far the world has come from the superpower slow dance of years gone by.

With the Cold War over and the high-minded and free-wheeling 1990s in full swing, this international forum was no quite affair in which Washington, Moscow and Beijing called the shots. It was instead a rowdy, unruly gathering that cracked the U.N. Security Council in half and proved that different forces are now at play. Just how different the U.S. learned last week, when its bid to craft a court to its liking crashed in humiliating defeat.

It was an "example of the growing diffusion of international power, and how so many countries no longer see the Security Council as the world's rightful custodian," says Richard Haass, director of foreign policy studies at the Brookings institution.

Superpower and Policeman

The U.S. may yet get its way, of course. As the world's only remaining superpower and all-purpose policeman, America can bring a lot of pressure to bear. Indeed, a key U.S. senator, conservative Jesse Helms, vowed Thursday to fight the court and threatened to pull U.S. troops out of Europe unless it buckles to America will.

Still, many say the Rome conference heralds a new era of international decision-making that's likely to be more democratic and thus a lot messier.

Here, for instance, was a newly defiant and outspoken Germany, ready to face off against the U.S. on an issue of international prominence. Germany's stance became symbolic of a Europe that showed a rare flash of foreign-policy cohesion, albeit after weeks of back-room bickering and arm-twisting by the British.

Then there was the contingent of small African, Latin American and Asian states willing to band together against the wishes of former taskmasters in Washington or Moscow. Among them were newcomers to the international stage, such as Sierra Leone and Malawi, who were suddenly ready to speak out. Other relative upstarts like Argentina and Singapore also proved critical toward what followed.

NGO Newspapers

Perhaps most telling, though, was the newfound might of human-rights groups. They descend on the convention from around the globe, bringing with them a legion of lawyers and experts who did more than any force to mold the daily position papers and briefings.

"In all my years of international work, I've never seen the NGOs play a more powerful role," says Alan Baker, chief counsel to the Israeli delegation. "They were in on nearly every meeting. They were in on everything."

Swamped beneath all of this, like Gulliver under an army of Lilliputians, was the U.S., which waged a fierce, often bitter diplomatic battle, only to see it crumble on the final day. When the vote came down that thwarted the U.S. bid to amend the treaty - and thus, it argued, to protect its own troops abroad - the room of delegates burst out in whoops and wild applause.

David Scheffer, the U.S. chief negotiator at the conference, sat amid the celebrants in silence. "I was thinking," he said later, "about what the real needs are for international peace and justice, and what a key role the U.S. military plays abroad." Those who were dancing around him, he said, "seem to have forgotten that simple fact."

As Mr. Scheffer sees it, other countries simply chose to ignore America's pivotal role in world affairs. But the result stung the administration of U.S. president Bill Clinton, who is eager to be seen as a champion of human rights and foe to international tyrants and thugs. What makes the U.S. defeat all the harsher is that Washington would have signed on, Mr. Scheffer said, were it not for the inclusion of four words in the final text that deprived U.S. citizens of any immunity from prosecution.

The road to Rome goes back years.

The first pitch for an international criminal court dates to 1872, in the aftermath of the bloody Franco-Prussian War. The notion resurfaced after World War I, which was marked by German brutalities against civilians. It came up again in the 1930s. After the atrocities of World War II, the U.N. appointed a team of experts to study the issue, It did so on and off for 50 years.

But it wasn't until the U.N. created the ad-hoc Yugoslavia war-crimes tribunal in 1993 that the idea for a permanent court gained steam. A cadre of countries ranging from Canada to the tiny island nation of Trinidad and Tobago took up the charge under heavy coaxing from human-rights groups. The cause began to wend its way through the U.N., where a squadron of lawyers and diplomats set about rafting a rough statute.

And rough it was. Between 1996 and early this summer, the lawyers and diplomats met six times for a total of 13 weeks. Still, by the time 150 countries converged on Rome in mid-June for the full diplomatic powwow, the working text was peppered with provisional language and shot a member of the British delegation, "a most challenging document."

In the India Room

Other problems were more basic.

At the conference venue - Mussolini's former Ministry of African Affairs - diplomats had to deal with a building where no delegation could even secure an office. Conference halls became the setting for an endless string of diplomatic huddles. The American co-opted the India Room and Pakistan Room, where they held bilateral arm-twisting sessions with nearly every country on hand. As one delegate from Scandinavian country put it, "Quietly, but without mincing words, they let it be known what they were after."

The human-rights groups, meanwhile, hunkered down among the ashtrays and half-empty coffee cups in the Sudan Room, or held court in the building's smoke-filled tavern. To bridge the chaos, nearly everyone had a mobile phone, leading one delegate to deem the result the "world's first mobile phone treaty."

From the star, diplomats faced a swirl of explosion smaller issues that showed just how quickly the sands could move. Brief but often bizarre alliances sprang up and just as quickly vanished. The Vatican, for instance, allied with the Arab states to fight a criminal definition of "forced pregnancy" that might run counter to their stances on abortion. In the end, they got their way.

But far bigger challenges faced those pushing for a tough new institution.

U.S. President Clinton had endorsed the court repeatedly, once during a stopover in Rwanda. But others around him weren't so sure. The pentagon didn't like what was brewing, arguing that U.S. soldiers from Korea to Bosnia might be hauled before the court. Sen. Helms, head of the powerful senate Foreign Relations Committee, didn't like it either: Any court that didn't completely protect U.S. interests, he said, would be "dead on arrival" in Senate.

Nor were the French, the Russian or the Chinese very happy. The court looked certain to erode some powers of the Security Council. Other opposition camps had formed among Arab states and non-aligned nations such as India, Pakistan and Mexico, which saw the court as a mere extension of the Security Council.

'The Like-Minded Group'

The countries pushing for a robust court marched under the banner of "the like-minded group." With its ranks swelling to 62 countries as the conference began, this group was to prove the decisive force at the conference. Among its stalwarts were nearly all the European states, Australia, Canada, Korea, Argentina, Costa Rica, Brazil and a cluster of small Africa countries, most notably South Africa. Of the permanent five Security Council members, only Britain jumped over to the like-minded group.

"It was clear that everyone faced a doozy of a battle," says Richard Dicker, legal counsel to the New York-based Human Rights Watch, a key player on the NGO side.

Oddly enough, the first several weeks churned along smoothly enough. On the eve of the final week, 90% of the draft statute was in place, including two of the toughest issues. "We were getting there, but slowly," says William Pace, who directed a huge coalition of groups in support of the court.

One of the hottest potatoes was whether to grant the Security Council veto rights over prosecutions. Most council members wanted the right to approve investigations, meaning that no prosecution could proceed unless all five members agreed. This was a non-starter to almost every other country. So the delegates agreed that the council could postpone an investigation only if all five agreed-a much higher hurdle.

A 'Global Ken Starr'?

The clause was a victory for the like-minded and a further irritant to the big powers. The next issue - how strong the court's prosecutor should be - was almost equally hot. The U. S. in particular wanted to limit the prosecutor's powers. "When Washington heard 'prosecutor' it thought 'global Ken Starr,'

and that terrified them," said one European diplomat, referring to the special prosecutor looking into alleged wrongdoing by President Clinton.

In the end, the core delegates decided to grant the prosecutor the right to undertake investigations on his own, so long as a panel of judges approved.

The U.S. didn't like what it saw. On July 9, Mr. Scheffer, Washington's special human-rights ambassador, made his displeasure clear. The U.S. would "actively oppose" the court, he announced, if the court had automatic jurisdiction over anything but genocide. Countries, in other words, should be allowed to decide for themselves whether to expose their nationals to charges of war crimes or crimes against humanity.

The statement fell like a bombshell. For decades, international law had made it clear that any country could prosecute anyone deemed to have committed serious war crimes anywhere in the world. The court envisioned by the U. S. would mark a serious step back, critics charged. "We were floored," recalls one key human-rights lawyer, Jelena Pejic. "After three and half years of this we were looking at a proposal allowing countries to opt out of the world's gravest crimes."

America's allies around the world also saw that they might have to prepare to go forward without U.S. support. "We realized that the U.S. was coming from a completely different place," said one member of the German delegation. "the room to negotiate looked slim."

Germany Stands Firm

But the mood soon turned nastier.

As the most vocal among the largest European states, Germany was coming under heavy U.S. pressure. Just how heavy became clear early last week, when a one page list of "talking points" said to have been prepared for U.S. Defense Secretary William Cohen leaked out. The paper, whose existence the Pentagon never denied, said that Germany's push for the court to have universal jurisdiction was "dramatically inconsistent with U.S. defense engagement and interests in the world." Should Germany's stance hold sway, the memo said, the U.S. would have to reconsider its "commitment of forces in Europe."

Although most European brushed off the memo as a political bluff, diplomats say it characterized Washington's aggressive diplomacy as the final days wore down.

Having lost the Security Council leverage over the court, the U.S. was now intent on one core issue: that a country be allowed to grant permission before one of its nationals could be tried in the court. As one chief delegate put it

later: "the whole U.S. effort was focused on safeguards. They wanted 100% safeguards, 200% safeguards. They wanted to know for all time that no American would ever sit in this court. And that no one could accept."

The statue as it took shape had layers of safeguards built in. An American, for instance, could go before the court only if the U.S. justice system was "unable or unwilling" to look into the matter itself. That alone, the Europeans argued, made a American in the dock unlikely.

The European powers become increasingly baffled by the U.S. stance. At one meeting, according to two delegates present, a top British diplomat turned to his U.S. counterpart and put the point bluntly: What is so special about the U.S., he asked? The Europeans also have soldiers stationed all over the world. Do you think, he asked, that we want to protect them any less?

The American diplomat, the witnesses say, simply restated that the U.S. exposure was larger and its desire for protection more firm. "In the end, we were willing to accept the safeguards, while the U.S. refused to swallow any risk at all," says one European delegation chief.

For Washington, it all boiled down to one snippet in a single offending paragraph. For a case to go before the court, said Article 12, one of two parties could give consent: Either the country where the alleged crime occurred, or the country whose citizen stood accused. Had the delegates agreed to omit four words, so that both countries had to agree, the U.S. would have signed onto the court.

After all, that would have allowed the U.S. to bar the court from prosecuting any of its citizens. That was the safeguard the U.S. sought. But that change would also have allowed any other country to do the same.

The other delegates refused to amend the text.

One member of the U.S. team summarized the result in a curious way. Those who pushed for the final treaty, he said, "had compromised it enough to render it flawed, but not enough to get the U.S. on board."