Military.com claims to be the largest online destination for the military community. Given the article's fairly full airing of Michael Scharf's pro-ICC response, it helps to take away from the image of the US military as an anti-ICC monolith.

Proposed War Crimes Tribunal Still Controversial

By Stephen Trimble

Military.com Staff Writer

WASHINGTON (Jan. 11, 2001) -- For military members, the jury's still out on the concept of an international criminal court.

The proposed tribunal would prosecute individuals for war crimes, genocide and mass brutality against civilians. A panel of three judges -- not the U.S. Constitution's" jury of peers" -- would render the verdicts.

President Clinton signed the 1998 treaty on Dec. 31 over the objections of the Pentagon and others. The treaty faces an uncertain fate in the Senate, where outspoken opponent Sen. Jesse Helms (R-N.C.) hopes to derail the international tribunal. Last summer, Helms urged Clinton to withdraw U.S. troops from any country that signed the treaty.

The treaty has been criticized by Helms and others for possibly putting U.S. service members at risk of unfair prosecutions beyond America's borders.

"We would have some serious concerns about the potential impact on men and woman in the military in these gray areas of peacekeeping," said Michael Schlee, the American Legion's top advisor on national security and foreign relations issues. An international court could put these Americans in "international criminal jeopardy," he said.

"Like it or not, the U.S. has the sole mantle of world responsibility right now," Schlee said.

Constitutional Guarantees?

"My concern is whether or not the federal government would deliver someone for a trial that may or may not comport with constitutional guarantees," said Tom Hemingway, a retired Air Force brigadier general and judge advocate.

But international legal expert Michael Scharf strongly disagrees. The international community placed sufficiently strict limits on the court's ability to launch prosecutions, he said.

The court would not punish random, isolated crimes by U.S. troops, but only offenses reflecting a wider policy or plan. The court would only be triggered as a last resort after national authorities refuse to prosecute. The prosecutor couldn't launch an investigation until a three-judge panel approved the action.

The U.S. demanded these restrictions -- and more -- before Clinton signed the treaty, said Scharf, director of the center for international law and policy at the New England School of Law.

At the Clinton Administration's request, the treaty's creators borrowed many legal protections for defendants from the U.S. Constitution, including Miranda rights and full disclosure by prosecutors.

Even so, Scharf could not rule out the possibility that U.S. troops could face unfair charges under the court. But he dismissed the concern as "worst-casing in the extreme."

Better In Than Out

Scharf also argued that taking the "hostile outsider" approach could backfire on the U.S. As an insider, "you can make sure the court won't do these wacky things," he said. Remember, he said, that a U.S.-blessed international tribunal dismissed charges of war crimes stemming from NATO's 1999 air strikes against Serbia.

But Hemingway said the U.S. military's legal system already can punish troops or commanders for committing war crimes. "We have a long, long history of bringing soldiers to justice," he said.

But the U.S. military's legal ability to pursue war crimes stops with its own troops, Scharf pointed out. That means the U.S. can't prosecute captured prisoners for war crimes, he said.

"If we apprehended the world's next Adolf Hitler," Scharf said, "we'd have to deport him to put him on trial."

Law professor Peter Murphy supports the concept of an international court, a subject he knows well as an appeals lawyer for the ad hoc tribunal in The Hague, Holland, which is hearing Yugoslavian war crimes.

"I do not believe that U.S. military personnel would not be at risk" by the international court, said Murphy, a law professor at the South Texas College of Law in Houston. "I think the reason why we need it is some countries do not have effective procedures to prosecute these criminals."

Some U.S. troops may very well prefer the international court. The Uniform Code of Military Justice permits the death penalty, Murphy said, but the international court doesn't allow capital punishment.