The Washington Post

Monday, January 1, 2001

U.S. Signs Treaty on War Crimes Tribunal

Pentagon, Republicans Object to Clinton Move

By Thomas E. Ricks

Over the objections of conservatives and the Pentagon, the United States signed a treaty yesterday that would create the first permanent international court designed to try people accused of genocide, war crimes and other crimes against humanity.

"We do so to reaffirm our strong support for international accountability," President Clinton said in a statement from Camp David, Md., where he spent the weekend. "We do so as well because we wish to remain engaged in making the ICC [International Criminal Court] an instrument of impartial and effective justice."

Clinton said his administration still has "concerns about significant flaws in the treaty." It remains especially worried that the Netherlands-based court, which would replace case-specific international courts with a permanent tribunal, may claim jurisdiction over citizens from nations that do not ratify the treaty, as ultimately could be the case with the United States.

One reason that he decided to sign, Clinton said, was to enable the United States to continue to influence the shape of the treaty. Yesterday was the last day that nations could sign the treaty without first having ratified it.

At United Nations headquarters in New York, David Scheffer, the U.S. ambassador at large for war crimes, said he signed the treaty "in honor of the victims of these crimes and also in honor of the U.S. services who uphold these laws of war."

A senior administration official described Clinton's decision to sign as mainly a tactical move to keep the government involved in negotiations on the treaty. Clinton shares the Pentagon's concerns that the international court could seek to prosecute U.S. soldiers for political and ideological reasons, this official said. But, he said, "the president believes that signing . . . will keep us in the game."

Human rights organizations applauded the move. "The president has made history here," said Richard Dicker, director of international justice programs at Human Rights Watch, a human rights monitoring organization. "He has strengthened hope for international justice for millions and millions of people worldwide."

Similarly, Michael Posner of the Lawyers Committee for Human Rights said Clinton's decision "reaffirms U.S. support for international criminal justice as a means of protecting human rights."

But others denounced the president's action.

"This decision will not stand," said Senate Foreign Relations Committee Chairman Jesse Helms (R-N.C.). "I will make reversing this decision, and protecting America's fighting men and women from the jurisdiction of this international kangaroo court, one of my highest priorities in the new Congress."

Lee A. Casey, a former Justice Department official who specializes in international law, called the move "a shame." By signing the treaty, he argued, the U.S. government gave up its best bargaining chip in trying to win additional changes in the treaty.

Casey said he opposes the creation of the permanent International Criminal Court under the auspices of the United Nations because he believes its powers are too extensive, and could subject American citizens to trial without allowing them the rights and protections they are guaranteed by the Constitution.

It is unclear what the practical effect of the United States signing the treaty will be, given that the Clinton administration leaves office in less than three weeks, and that ratification of the treaty by the Senate any time soon is considered unlikely. Most notably, Helms has vigorously opposed the treaty because he said he wants to ensure that "no American is ever tried by this global Star Chamber."

However, one effect is immediate: Experts said it is an accepted principle of international law that by signing a treaty that is not yet ratified, the government immediately is obliged not to violate the spirit of that treaty.

Clinton said in his statement that because of his concerns about the powers of the court, he would not submit the treaty for ratification. Nor, he said, would he recommend that President-elect Bush do so.

"Chances are it will never be ratified," said Casey, the international lawyer.

The president's decision marks the third time in two years that Clinton has overruled Defense Secretary William S. Cohen on a major issue.

In November 1998, Clinton overruled Cohen and other members of his Cabinet who advocated going forward with air raids against Iraq; the air attacks were postponed for a month. Last summer, Cohen advocated taking the first step in building a national missile defense system by building a radar site on a remote Alaskan island, a move that Clinton ultimately rejected. A Defense Department official noted, however, that there were several major issues on which the president supported Cohen, the sole Republican in the Cabinet.

On the International Criminal Court treaty, "the [Defense] Department's position has been clear," a Pentagon official said. "We were against signing it and still are."

The U.S. military's objections have played a significant role in shaping the treaty because it is more involved globally than any other nation's armed forces, with hundreds of thousands of U.S. troops operating in dozens of nations every day.

In the Pentagon's view, the treaty "offers inadequate protection for the average soldier on the ground in any number of scenarios," another defense official said. Some opponents of the treaty fear that U.S. troops could be subjected to prosecution for ideological reasons.

But other experts predicted that the U.S. military could be a major beneficiary of the treaty. "Our military is the most law-abiding in the world, and so the least likely to be hauled before the court," said Anne-Marie Slaughter, a professor of international legal studies at Harvard Law School.

Slaughter said the treaty could give the U.S. military an additional tool by providing a widely accepted legal basis when it is pursuing dictators and other leaders who abuse human rights.

Several other nations signed the treaty in recent days as the deadline for participating without ratifying approached, bringing the number of signing nations to 139. Israel at first said yesterday that it would not sign, then reversed its position after the United States said it would.

Starting today, other nations that want to become a party to the treaty must first ratify it. The treaty takes effect when 60 nations have ratified it; 27 have done so.

Special correspondent Colum Lynch in New York contributed to this report.