DENVER ROCKY MOUNTAIN NEWS

Tuesday, January 2, 2001

WAR CRIMES TRIBUNAL IS ONLY AN INSTITUTION MADE OF PAPER

BY: Holger Jensen

President Clinton brought in the New Year by signing a treaty to create the world's first permanent war crimes tribunal. But don't expect to see one soon.

Although the last-minute signing was hailed by human rights groups, it was largely symbolic.

Sen. Jesse Helms, chairman of the Foreign Relations Committee, says he will never allow the treaty to be ratified because it may be used to target Americans abroad. And Clinton himself has changed color on the issue more times than a chameleon.

He started out supporting an International Criminal Court, even challenging other nations to reach agreement by July 1998. When they did meet the deadline, after four years of tortuous negotiations, Clinton ordered David Scheffer, the U.S. ambassador at large for war crimes issues, not to sign it.

Thus, while 120 nations, including all our major allies, approved the ICC treaty in Rome two years ago, we found ourselves siding with some of the world's worst human rights violators and international pariahs against it.

One reason was Helms' opposition; the other a caution from the Pentagon.

With 200,000 GIs permanently stationed in 40 countries and engaged in peacekeeping missions all over the world, the military brass feared they could be subjected to frivolous charges or politically motivated kangaroo courts.

Human rights groups say this can't happen; in a democracy such as ours, the domestic judicial system - including military courts - remains the first line of accountability. The ICC is designed to step in only when a country fails to bring its own war criminals to trial.

In truth, however, winners of wars rarely prosecute their own for war crimes. Only the losers are brought to justice, as they were at Nuremberg and Tokyo after World War II.

A case in point: Amnesty International and several lawyers' organizations accused NATO of war crimes after the bombing of Yugoslavia last year. After examining the complaints, the chief U.N. war crimes prosecutor, Carla del Ponte, ruled that "although some mistakes were made . . . there was no deliberate killing of civilians or unlawful military targets." Case closed.

Since the Rome debacle, State Department lawyers have been trying to carve out a blanket exemption protecting American soldiers from being hunted down and prosecuted by the new U.N. court. Human rights advocates fear this will encourage other countries such as Iraq to follow suit and undercut the entire concept of the court.

"If an Iraqi military commander committed crimes against humanity against Iraqi citizens, Iraq as a nonparty state could deny the court the authority to prosecute. That is in essence what is wrong with the U.S. effort," said Richard Dicker of Human Rights Watch.

But Scheffer counters that the risk of prosecution for war crimes "is a very inhibiting risk to put on the table every time you decide whether or not to intervene" in a foreign conflict or peacekeeping mission.

Although an exemption was not granted, Clinton ordered Scheffer to sign the treaty anyway shortly before the New Year deadline. His rationale: signing will give us a say in the makeup of the court and allow us to continue to seek adequate safeguards for Americans.

Further, Clinton recommended that President-elect Bush not seek Senate ratification of the treaty until he is satisfied that it protects U.S. service personnel abroad.

Even so, Helms called it "a blatant action by a lame-duck president to tie the hands of his successor." He and other leading Republicans have drafted legislation forbidding the United States to have anything to do with the court and seeking to punish those countries that do ratify the treaty.

Like the United States, Israel had flip-flopped on the ICC, initially supporting it, then opposing it, then following Clinton's lead in signing it.

As Israeli Ambassador Yehuda Lancry explained it, his country had pushed for a permanent war crimes tribunal since the 1950s because of "the Holocaust, the greatest and most heinous crime against mankind." But there was a concern that Israel might be be prosecuted for war crimes against the Arabs.

The Geneva Conventions, for examples, outlaw the transfer of civilian populations to territories captured in war. This makes Israeli leaders liable for settling 200,000 Jews in the occupied West Bank and Gaza Strip.

(Foreign Affairs: Holger Jensen is international editor.)