Battle for World Court Heats Up

Here’s a scenario for those eager to rid the world of the excesses of Iraqi President Saddam Hussein: Sometime soon he develops a life-threatening disease--say he needs an organ transplant. After a secretive 10-hour drive to Jordan, he flies to Moscow for surgery. As he recovers in a Russian hospital, the United States calls for his indictment on charges of crimes against humanity.

But then the questions begin: Where would Hussein be tried? Who would charge, arrest and judge him? Could the United Nations set up a special court before Hussein’s Russian allies returned him to the safety of Baghdad?

The answers may emerge in the next four months as more than 100 countries, including the United States, struggle toward agreement on a permanent international war crimes tribunal, a court of last resort for those accused of war crimes, genocide and crimes against humanity.

The penultimate round of bargaining ended Friday at the U.N., and negotiators are now pointing toward a final, intense, five-week session in Rome next summer. They have set a July 17 deadline for finishing the treaty.

American officials say the United States, with about 200,000 military personnel permanently stationed in 40 countries, has more at stake in the negotiations than any other nation. A delegation of officials from the State, Justice and Defense departments, led by David Scheffer, a special ambassador on war crimes issues, is among the most active in the talks.

But the U.S. is coming under increasing criticism, especially from independent human rights and legal groups that are among the court’s foremost advocates, for seeking strict limits on the tribunal’s authority.

For example, Richard Dicker, associate counsel for New York-based Human Rights Watch, cites the hypothetical Hussein story as he goes around the country trying to drum up public support for an international criminal court.

But he adds an unexpected twist: If the court were set up on U.S. terms, Hussein probably would be safe from prosecution. America is so intent on setting up safeguards to prevent U.S. troops from coming under court jurisdiction that it also would shield a dictator like Hussein, he contends.

As the bargaining session here neared its scheduled conclusion Friday, the overriding question is whether between now and July 17 negotiators can bridge the gaps that divide the United States and other major military powers such as France, Russia and China, from a core group of about 45 Western and emerging democracies--including Argentina, Australia, Britain, Canada, Germany and South Africa--that favor a far more expansive tribunal.

Issues still to be decided include the breadth of the court’s jurisdiction; the powers of the prosecutor; what charges could be brought; how the tribunal would enforce its decisions; what it will cost and who will pay for it. Delegates here say they are satisfied with the pace of negotiations but acknowledge that the toughest questions will not be resolved until the last few days in Rome.

The court would be patterned on the Nuremberg tribunal that judged Nazi war criminals after World War II and more recent international courts established by the U.N. Security Council to bring to justice those behind the “ethnic cleansing” in the Balkans and the genocide directed against the Tutsi people in Rwanda.

It would include an international panel of judges selected by an elective process, a prosecutor’s office and an administrator. The court would differ from the International Court of Justice in The Hague, which settles disputes between countries but has no jurisdiction over individuals.

The new court’s charge, Scheffer said recently, would be “to advance a simple norm: Countries must prosecute those who commit genocide, crimes against humanity and war crimes or turn suspects over to someone who will, in this case, an impartial and effective international court.”

Because the international body could not take jurisdiction over a case unless a national court failed to act, advocates of the tribunal say its mere existence would be an incentive for nations to prosecute war crimes on their own.

Supporters also say that even if the court were unable to arrest indictees--as the U.N. tribunal for the Balkans has been unable to seize high-level Serbian suspects--a war crimes indictment would be a mark of disgrace on a country and would restrict the movement of those under indictment.

But as an international institution in the same rank with the U.N. , the World Trade Organization, the International Monetary Fund and the World Bank, the court also could be a powerful weapon.

The U.S. nightmare is that countries such as Cuba and Libya would use it to harass American soldiers and counter U.S. policy. The court “should not become a political forum in which to challenge legitimate actions of responsible governments by targeting their military personnel for criminal investigation,” State Department spokesman James P. Rubin said Thursday.

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Delegates here say that the Pentagon’s fear that the court could be used against GIs is behind the U.S. drive for a narrowly defined court. That concern was underlined last week when Sen. Jesse Helms, the North Carolina Republican who chairs the Senate Foreign Relations Committee, made public a letter to Secretary of State Madeleine Albright declaring that he is “unalterably opposed” to a permanent court.

The Helms letter undercut the U.S. bargaining position, delegates say, by lending authority to critics who say that what the Americans really want is a court that can be controlled by the U.S. and used as an extension of American power.

“There’s a growing feeling within the African delegates and among other states as well that the United States is willing to have a court, but not one for Americans, one only for others, such as Africans,” said Aref Mohammed Aref, a representative of Amnesty International from Djibouti.

The draft treaty now includes 99 articles covering 175 pages, with 1,400 phrases or sentences still in dispute. Major items of contention include how closely allied the court should be with the U.N. Security Council, where the permanent members--the U.S., Britain, China, France and Russia--exercise veto power. The U.S. favors close ties.

There is also wide disagreement on how to finance the court and no estimate of how much it would cost.