Published on Tuesday, June 13, 2000 in the Christian Science Monitor
US Angers Allies As It Fights Creation Of International War Crimes Court
US Wants Immunity
by Justin Brown
A widening dispute between the United States and its allies is threatening efforts to create a permanent international court to try accused war criminals.
The International Criminal Court (ICC) - already approved by 97 nations - has been hailed as a breakthrough in global justice. If realized, it would replace the United Nations-backed war-crimes tribunals and handle cases of some of the world's most feared dictators.
But while the US has traditionally led efforts to prosecute accused war criminals, such as Slobodan Milosevic of Yugoslavia, it is wary of the ICC, primarily out of concern that US soldiers and policymakers could fall prey to international vendettas and trumped-up prosecution.
"The concern about having a court that could prosecute American officials for American foreign policy is general and broad," says Jeffrey Pryce, a former Defense Department official who represented the US when the treaty to establish the court was adopted in Rome in July 1998.
As a result, US officials are pushing for a rule change, which will be discussed this week in New York at a session of the court's preparatory commission.
Already, the ICC has made concessions to get the US aboard, such as adding a provision that would give functioning national courts priority to try their own nationals.
However, the US wants to extend immunity to countries that have not ratified the treaty, but over whom the court still has jurisdiction, including the US, Russia, China, and "rogue" states such as Iran, Iraq, North Korea, and Yugoslavia. If citizens or leaders of one of those "nonparty" countries were indicted, their governments would not have to turn them over to the court unless ordered to do so by the UN Security Council.
"Unless this proposal is embraced in some manner, then one has to expect there would be some consequences," said David Scheffer, the US ambassador for war crimes issues, in an interview. "This is really the best we can do."
But commission members, many of whom represent close US allies, strongly oppose the US proposal.
Most rogue states have an ally on the Security Council, which could use its veto power to protect them. The US, Russia, and China have permanent seats on the council, and could exempt themselves.
"This will benefit the very kind of people the court wants to prosecute," says a European delegate, speaking on condition of anonymity. "It will hamper the ability of the court to do its work, and it will weaken the court's jurisdiction."
The US proposal would also break an international precedent set by the 1945 Nuremberg war crimes trials, which established that official government acts were not exempt from international law.
Mr. Scheffer says he would refine the rule to prohibit certain nonparty countries from using the exemption. But no such distinction exists in a version of the proposal that has been circulated to delegates on the court's preparatory commission.
Among the allies chafing at the US rule change are all European Union members, Canada, Australia, and Switzerland.
The treaty establishing the ICC has been signed by 97 nations and is now being considered for ratification. The court will become official when 60 countries complete that process, but will probably not come into force until about 2003. It would focus on prosecuting dictators along the lines of former Chilean Gen. Augusto Pinochet and Cambodian Khmer Rouge leader Pol Pot.
Nevertheless, the court makes US officials nervous.
Most recently, accusations were brought to the UN criminal tribunal for the former Yugoslavia that the US-led NATO military alliance had committed war crimes when it bombed Yugoslavia last year. Also, Amnesty International, a human rights group, this week called aspects of the bombing "unlawful," citing an attack on the headquarters of Serbian state television and radio that killed 16 civilians. But the chief prosecutor for the UN court, Carla del Ponte, decided the allegations lacked enough legitimacy to warrant an investigation.
In recent years, the US has sent mixed signals about its attitude toward international bodies and agreements. The US has rejected global measures that would ban nuclear-weapons testing, ban land mines, and reduce greenhouse gases that contribute to global warming. At the same time, the US has preached the necessity for globalization, and in particular the lowering of trade barriers.
(c) Copyright 2000 The Christian Science Publishing Society