The Boston Globe

January 14, 2001

Will Bush backpedal on war criminals?

By Elizabeth Neuffer

UNITED NATIONS - At the United Nations war crimes tribunal in the Netherlands, a high-ranking Bosnian Serb general is on trial for genocide, and a key Bosnian Serb leader turned herself in last week. At a second UN court for Rwanda, top ministers responsible for that country's slaughter are behind bars, waiting their turn in the dock.

Cambodia 12 days ago moved to create its own war crimes tribunal, while two days earlier and half a world away, President Clinton signed a treaty for a permanent international court.

International justice, once a dream relegated to history books, has become a new force in foreign policy as nations turn to war crimes courts to put tyrants behind bars.

But with the incoming Republican administration in Washington already under pressure from isolationist conservatives, some UN diplomats and US allies fear the strong American leadership on issues of international justice will wane.

Already, Republican Senator Jesse Helms is pushing legislation barring US participation in the permanent international criminal court. Donald Rumsfeld, the defense secretary-designate, supports the bill. And advocates worry that the Bush administration, no fan of international institutions like the UN, will not continue the generous financial support - more than $200 million - that has been critical to the two UN tribunals.

''The US risks swimming against the current of the international community,'' warned Cherif Bassiouni of DePaul University, a specialist on international law who has been active in hammering out the shape of the new criminal court.

Counters John Bolton, of the conservative American Enterprise Institute: "There isn't going to be much of a movement if we don't participate."

Last week, Bolton, among those mentioned for US ambassador to the UN - called on President-elect George W. Bush to spurn the treaty. He does not support either existing war crimes tribunal.

Indeed, while the Clinton administration chose to sign the treaty creating an international tribunal, Clinton recommended that it not be sent to the Senate for ratification until greater protections for US servicemen were added. A Bush spokesman last week concurred that the treaty had flaws.

The question now is whether the Bush administration will seek to strengthen the treaty or actively oppose it. The permanent international criminal court would use existing war crimes laws, such as the Geneva and genocide conventions, to prosecute war crimes.

It was as recent as a decade ago that the term "war crimes trial" summoned images of the 1945 Nuremberg military tribunal. Talk of their revival began, coincidentally, under the last Bush administration, which raised the prospect of creating a tribunal to try Iraqi dictator Saddam Hussein.

However, that war crimes courts have come into being - and that the United States' allies embrace them - is the work of Secretary of State Madeleine K. Albright. While ambassador to the UN, she lobbied for the creation of the ad hoc tribunals for Rwanda and the former Yugoslavia.

As secretary of state, she has frequently called to have war criminals arrested and prosecuted. She recently met Yugoslavia's new leaders and pressed for Slobodan Milosevic, the ousted preesident, to be turned over to the tribunal in The Hague. She also created an office in the State Department with an ambassador for war crimes.

Now, there are two UN tribunals, with plans for more. A war crimes court for Sierra Leone is under negotiation, and there are discussions of one for East Timor. The UN pressed Cambodia to set up its war crimes court, and has been at the center of negotiations for a permanent war crimes court.

UN Secretary General Kofi Annan last week called the permanent international criminal court, backed by 139 nations, a step toward making the 21st century better than the 20th.

But the North Carolinian Helms has vowed to work with the Bush administration to thwart the reach of the court. Rumsfeld's support of Helms's bill troubles many European allies. So does criticism from conservatives that there is no need for UN war crimes tribunals or a permanent international court because countries should hold their own war crimes trials.

"There are some people potentially in this administration who seem not to understand it is in US interest to support international justice," said Nina Bang-Jensen, from the Coalition for International Justice in Washington.

"I am worried about Congress and this new administration's opposition," said Inocencio Arias, the Spanish ambassador to the UN. "The US should be setting an example [by ratifying] instead."

While records of the Yugoslav and Rwanda tribunals are mixed - some critics say the trials are slow and too removed from the people they serve - few disagree that the two tribunals have put some war criminals in jail and helped make life uncomfortable for others. Milosevic, for example, indicted by the tribunal in The Hague, risks arrest if he leaves his homeland.

A bitter battle could yet play out over the future of the permanent international criminal court, aimed at prosecuting ongoing and future war crimes. With 27 countries having ratified it - including Canada, Germany, and France - there is no doubt the court will come into being next year, when the required 60 countries have ratified, American participation or not.

"A future administration must deal with this," said a senior Clinton administration official.

In 1998, Clinton refused to sign the treaty creating the court, largely because of Pentagon concerns that there are not sufficient protections for US soldiers serving overseas. But the administration chose to stick with negotiations. By remaining players, Pentagon lawyers have helped shape agreements that carefully define genocide or rape under international war crimes law, and thus provide some protection for US soldiers.

While an overall compromise on the issue of US soldiers has been elusive, "it was better to be working on the inside than on the outside," noted Jeff Pryce, a Washington lawyer who was part of the Pentagon team.

Part of the problem is that the United States and its allies have differing views of the court. America fears the court could be used freely for political purposes, while its allies see its mission as far more limited. Under their view, the court would intervene to prosecute crimes of genocide, crimes against humanity, and war crimes only when a country fails to try its own nationals for committing them.

Many countries are now adopting war crimes provisions as part of their own domestic laws, confident that the permanent world criminal court will never need to intervene.

"My government told our parliament that they are dead sure no citizen will ever come before the court unless our country's laws have somehow ceased to exist," said one senior European diplomat to the UN. "We cannot understand why Americans have so little confidence in their own system of justice."

But Pentagon officials fear the jurisdiction of the permanent criminal courts. They worry the court one day will unfairly prosecute US soldiers doing their duty overseas.

With more than 200,000 US troops abroad in a complex world where nearly every military mission is accompanied by allegations of war crimes, the United States is particularly vulnerable, the Pentagon says. ''We will never be party to a treaty that doesn't prevent somebody from initiating a procedure against a US soldier,'' said Ken Bacon, a spokesman for the Pentagon.

Of greater concern, the Pentagon says, is that countries that do not ratify the treaty - Iraq, for example - nonetheless could allow the court to try other nations for crimes committed on their soil. A Pentagon general's nightmare scenario: An American pilot, ordered to bomb a world despot, is put on trial if his payload accidentally hit civilians instead.

Whatever the compromise, neither the court nor the issue of war crimes will disappear. Some hope the new criminal court, simply by the moral force of its presence, will force countries to examine their actions more carefully.

"Countries that might have been inclined to sweep the past under the proverbial carpet," said Diane Orentlicher, a professor at American University's School of Law, "will now have a powerful incentive to address the crimes themselves."