The Boston Globe

HOW HELMS IS SPARKING A REAL CRISIS

By JAMES CARROLL

WORRYING ABOUT A potential constitutional crisis coming out of Florida, we hardly noticed a creeping constitutional crisis that showed itself in New York last week.

At the United Nations, representatives of more than 100 countries are at work, until this Friday, on negotiations aimed at implementing the 1998 Rome Treaty on the International Criminal Court. Arising from American-backed tribunals in Rwanda and the former Yugoslavia, the ICC will adjudicate genocide and other crimes against humanity. Replacing vengeance with law, the court represents a major step toward a new world-structure of peace.

Recall that, out of concerns for sovereignty, the United States has yet to sign this treaty, a demurral that puts us in the company of Iraq, Libya, China, and a few others. The Clinton administration, which supports the court in principle, has been working in a delicate process to obtain side agreements that address its concerns, and there have been hopes that the president would sign the treaty by the Dec. 31 deadline that would keep the United States actively engaged in the shaping of the court, even without full ratification.

But last Wednesday, in a clear violation of the American way, Republican Senator Jesse Helms of North Carolina preempted the administration's transcending responsibility to conduct foreign policy by dispatching his press spokesperson to the United Nations, where he held a press conference to spotlight his diehard opposition to the treaty. (An Associated Press story, my source, reported on this event, but it was not covered in the Globe or The New York Times. Helms will make his "American Service members Protection Act" a "top legislative priority," the spokesperson said, referring to a bill that would not only spike US participation in the court, but would punish countries that ratified the treaty, and would severely restrict future American support of UN peacekeeping. Thus Helms was not only inserting himself into an international forum, contemptuously intruding upon an American president's delicate and time-sensitive effort to shape foreign policy. He was threatening other nations with retaliation - a mili

tary aid cutoff - if they go forward with a court he doesn't like.

And that is not all. Against the present administration, Helms produced a chorus of former officials to echo his intervention at the UN. On that same Wednesday - a coincidence? - a letter supporting the Helms bill was released by a dozen foreign policy heavy hitters, including Henry Kissinger, Jeane Kirkpatrick, George Shultz, and James Baker III - a sad demonstration of how far we've come from the post-World War II generation of internationalists who, in fact, gave first expression to the idea of an international war crimes tribunal. Helms and his supporters claim to be speaking for "American service members," but how do the military men and women who might find themselves subject to the ICC feel about it? In a phone conversation last Friday, I put the question to retired Major General William L. Nash, who commanded Task Force Eagle in Bosnia, a multinational division supporting the Dayton Peace Accords, and who has just returned from a stint as a UN administrator in Mitrovica, Kosovo. These responsibilitie

s have given General Nash a clearer view of these complexities than almost anyone.

He said, "My experience from Vietnam to Desert Storm to Bosnia tells me that you behave within the laws of war. The treaty does not change that. It is an endorsement of what we believe in." Indeed, by deterring war crimes, the ICC would be the true protection of Americans, along with everyone else.

General Nash is author of "The ICC and the Deployment of US Armed Forces," a chapter in a study of the court published recently by the American Academy of Arts and Sciences. The academy's program director for international security studies, Martin Malin, watched events unfold last week. The Helms intervention, he told me, "was timed to sharpen the divisions between the United States and other nations, threatening them by saying, in effect, 'If you support this court, you put your military relations with the US at risk.' Senator Helms is way overstepping the right of Congress to exercise authority in foreign policy."

That James Baker is a party to the Helms campaign signals that an incoming Bush administration would prefer to be shackled by a xenophobic Congress than to be constrained by multilateral and equitable agreements with other nations - a preference here for the old cycle of violence to a new structure of peace. Jesse Helms is an exact epiphany of the mindset, at once parochial and triumphalistic, that will guarantee not America's supremacy, as he so foolishly thinks, but its irrelevance. If, growing impatient, you thought there was nothing serious at stake anymore in whether Al Gore prevails in Florida, think again.

James Carroll's column appears regularly in the Globe.