War Crimes Tribunal Becomes Reality, Without U.S. Role
By BARBARA CROSSETTE
UNITED NATIONS, April 11 — More than half a century after it was proposed in the ruins of World War II, the world's first permanent court for the prosecution of war criminals and dictators became a reality today as the United States stood on the sidelines in strong opposition.
The treaty that established the court, which is expected to take shape in The Hague over the next year, went into effect after the 60th nation had ratified it. The court closes a gap in international law as the first permanent tribunal dedicated to trying individuals, not nations or armies, responsible for the most horrific crimes, including genocide and crimes against humanity.
Until now, just ad hoc courts like the Nuremberg trials after World War II and the Balkans tribunal that is now sitting in judgment on Slobodan Milosevic, the former Yugoslav president, have done that work.
"The long-held dream of the International Criminal Court will now be realized," Secretary General Kofi Annan said at a news conference in Rome, where 120 countries first agreed in 1998 to set up the tribunal. "Impunity has been dealt a decisive blow."
But the Bush administration again demonstrated its readiness to go it alone when it deems necessary, boycotting the ceremony here that celebrated the birth of the court. That attitude has prompted concern in Europe and elsewhere over a new American unilateralism.
The establishment of the court has been broadly welcomed by most democratic nations, American lawyers' associations and human rights groups. But it has an implacable foe in the Bush administration, which argues that the court will open American officials and military personnel in operations abroad to unjustified, frivolous or politically motivated suits.
The court will assume jurisdiction over charges of genocide, crimes against humanity and war crimes committed after July 1 of this year. Washington fears that a country as powerful as the United States, with its unchallenged military might and troops around the world, would be uniquely vulnerable to prosecutions. In theory, any American, from high-ranking officials like the Secretaries of Defense or State to soldiers in the field, could be accused of a crime.
President Bush appears to be on the verge of not only renouncing the tribunal, but also removing the signature of the United States from the treaty.
Even so, no country is deemed to be outside the court's jurisdiction. American participation would strengthen the court considerably, and by not taking part the United States will lose influence over court proceedings.
The United States signed the treaty for the court in December 2000 in the last days of the Clinton administration. Bush administration officials say it will never be sent to the Senate for ratification.
Congress has passed a law to forbid Americans at all levels of government to cooperate with the new court, and the United States is trying — so far without success — to insist on exemptions for Americans from its jurisdiction.
Today, five members of Congress, led by Henry J. Hyde, chairman of the House International Relations Committee, sent a letter to Secretary of State Colin L. Powell requesting that he ask the Security Council to write into every future peacekeeping resolution a grant of absolute immunity from the court for Americans who take part in operations. That would start with a renewal of the international force for Bosnia in June.
The New York City Bar Association was one of many organizations that wrote to Mr. Bush this week urging a reconsideration of what is apparently a decision to renounce the court treaty. The action, the president of the lawyers' group, Evan A. Davis, said would "weaken U.S. international standing at the very time we need international cooperation for the war against terrorism."
The United States ambassador for war crimes, Pierre-Richard Prosper, said in a conference call from Washington with reporters that Mr. Bush had not decided to "unsign" the treaty. But all his comments on the relations, or lack of them, between the United States and the court point to that end. Symbolically, the American seat at the ceremony today was empty.
It was a ceremony, Mr. Prosper said, "that we felt there was no need for us to attend, and there was no role for us to play."
Mr. Prosper seemed to rule out allowing the treaty to remain in limbo, perhaps to be reconsidered by a future administration.
"Our position is that we continue to oppose the treaty and do not intend to become a party," he said. "It is important that our position is made clear and that we operate here in good faith and not create expectations in the international community that we will be a party to this process in the near term."
Asked whether the United States would cooperate in handing over war criminals or information for prosecutions, Mr. Prosper said, "We have no obligation to the court."
David J. Scheffer, who signed the treaty for the United States as the ambassador for war crimes in the Clinton administration, said in an interview today that backing out now was "a very ill-advised strategy."
"The only reason you would unsign the treaty is if your intention was to wage war against the court," Mr. Scheffer said. "If your intention is not to wage war against the court but rather to try to preserve American interests, defend American interests, protect American interests, then the best strategy would be to remain as a signatory."
Michael Posner, executive director of the Lawyers Committee for Human Rights, said in an interview that unsigning the treaty would set a terrible precedent. "No American president in 200 years has unsigned a treaty, as far as we can find," he said. "It would also send a signal to other governments around the world that treaties they signed are unsignable."
Most democratic nations and all European Union countries have ratified the treaty — except Greece, which is in the process of doing so — along with Canada, New Zealand and a number of African, eastern European and central Asian countries. Israel has signed it but not ratified. Egypt, Iran and Syria have signed. India and Pakistan have neither signed nor ratified.
Besides the United States, other powerful nations have held themselves aloof, as well. Russia has signed but not ratified. China has done neither.
European allies have been among those trying to convince the United States that many safeguards are built into the court that can prevent frivolous or politically inspired prosecutions. Most cases will be brought by a chief prosecutor or the Security Council. A pretrial review panel will be able to throw out charges. Moreover, the court will be required to allow national courts to handle cases in the first instance.
Mr. Prosper said today that those steps were not enough. "The point is that we do view the safeguards as being insufficient," he said.
Mr. Annan tried to calm American fears today. "The court will prosecute in situations where the country concerned is either unable or unwilling to prosecute," he said. "Countries with good judicial systems who apply the rule of law and prosecute criminals and do it promptly and fairly need not fear.
"I don't think this a court that is going to run amok."
