U.S. Refuses to Endorse Global Court to Try Crimes

A United Nations conference Friday approved by overwhelming vote--and over American objections--a long-sought treaty creating a permanent international criminal court to punish those who commit genocide, war crimes, torture and other atrocities.

Only six nations joined the United States in opposing the creation of the court, which 120 countries endorsed.

Most Western and emerging democracies, Washington’s traditional allies and three of the other four permanent members of the U.N. Security Council--Britain, France and Russia--voted for the court and rejected the U.S. position; 21 nations abstained.

Approval of the treaty, which still must be signed and formally ratified by at least 60 countries before it takes force, a process that could take years, was hailed by most delegates here and by human rights advocates.

They saw it as a bold experiment in reaching across national boundaries to bring to justice those who commit the world’s worst abominations.

“This is a historic advance in the rule of law and in the direction of ridding the world of the scourge of war,” said William Pace, coordinator of a coalition of more than 800 human rights groups from around the world that lobbied vigorously for the court. “It may secure for the next century the kind of peace and justice that was so absent in this century.”

But David Scheffer, the chief U.S. representative here, warned conference delegates that they were creating a court that will be “strong on paper but weak in reality.”

He said Washington will not recognize the court’s jurisdiction or authority in many cases.

Scheffer also suggested that the court treaty overreached existing international law, threatened to undermine the U.N. Security Council’s responsibility to maintain international peace and grants too much power to its prosecutor.

“The United States is a leader in promoting international justice, and it is truly tragic that we have reached a juncture today that our desire to be in the leadership, our desire to be an engine of this court, has been derailed,” Scheffer said afterward.

He added that, although the United States “will continue to be a leader in supporting our common duty to bring to justice those who commit these heinous crimes,” Washington has not decided whether it will try to block the court by lobbying around the world against treaty ratification.

A senior U.S. official said American experts must review the tribunal’s potential effect on American troop commitments overseas.

The American objections reflect concern that the treaty could expose U.S. military personnel to politically motivated charges, despite assurances by allies that such a possibility is remote and that the U.S. has little to fear and much to gain from the proposed court.

At the last minute, the Americans sought to amend the treaty so citizens of nations that do not sign it are not subject to tribunal prosecution. Delegates rejected this move, 115 to 17, with 25 nations abstaining.

In this vote, the U.S. found itself aligned not only with allies such as Israel and Mexico but also a handful of authoritarian nations Washington often criticizes for human rights violations, such as China, Sudan, Turkey and Indonesia.

France and Russia, which had been the United States’ most potent backers in efforts to limit the court’s jurisdiction, switched sides in the conference’s waning hours.

When the American defeat was announced, the conference of diplomats became more akin to a rock concert as delegates and onlookers erupted into loud, rhythmic applause.

Human rights advocates sitting in the room sustained the ovation for several minutes after the diplomats stopped. During the cacophony, the American delegates sat silently, looking grim and stunned.

The treaty will not directly affect U.S. courts or those of any other nation.

Countries that ratify the accord will agree to prosecute their citizens accused of war crimes, genocide and crimes against humanity under their own laws or to surrender them to the international tribunal for trial.

But under some circumstances, countries that back this court also can bring charges against nationals of states that are not signatories--that was a provision that caused the United States to balk.

“Because of our special responsibilities, we do attract a lot of flak out there,” a senior U.S. official said. “We have to be certain that we can continue to exercise our responsibilities without adding a new judicial risk that is unnecessary, unfair and in the end will inhibit our ability to undertake humanitarian operations . . . and our alliance responsibilities.”

Several U.S. allies that had lobbied hard for the treaty also were dismayed by what Canadian Foreign Minister Lloyd Axworthy called Washington’s demand for “a 100% blanket guarantee” that U.S. soldiers never could come before the tribunal.

Delegates here said safeguards built into the proposed court structure make it unlikely that a GI would ever be charged or prosecuted.

Those safeguards include limiting court jurisdiction to crimes against humanity and war crimes committed as “part of a widespread or systematic attack directed against any civilian population” or “committed as a part of a plan or policy.”

The rules also prevent the tribunal from acting if a country uses its own judicial system to investigate an alleged crime.

Agreeing to the amendment proposed by the U.S. would have created a loophole for some of those the court was designed to ensnare, like Iraqi President Saddam Hussein, supporters said.

But a senior U.S. official said other countries underestimated the effect a politically motivated charge could have on American policy.

Under court rule, he said, the United States would have to respond to every potential complaint by reviewing it in American courts.

They acknowledged that the U.S. boycott will undermine the authority of the tribunal, but efforts to forge a compromise failed in late bargaining Thursday and Friday.

There was an accommodation, however, with France, which like the U.S. has troops stationed around the world.

A late addition to the treaty will permit any signatory state to temporarily exempt itself from the war crimes provisions. The exemption will expire after seven years and could be renewed only by a significant vote of those nations party to the treaty.

Marc Perrin de Brichambaut, chief of the French delegation, said the proposal was crucial in Paris’ decision to embrace the court.

That provision, however, upset some human rights activists, as did a loophole that makes it more difficult to prosecute leaders who oppress their own people.

The road to the Rome conference stretches back to Nuremberg, Germany, where, after World War II, victorious allies put on trial the surviving officials of Hitler’s regime.

The effort was given added impetus in this decade by atrocities in the Balkans and Rwanda, which prompted the U.N. to create temporary tribunals.

The final treaty text came after four years of bargaining, mostly behind closed doors, in little-noticed conferences at the U.N. in New York.

The international court, to be located in The Hague, would have 18 judges, a prosecutor’s office and an administrator.

Funding would come from parties to the treaty and, in some cases, from the U.N. budget.

Investigations leading to prosecutions could be initiated by signatory nations, the U.N. Security Council or independently by the prosecutor, subject to review by a pretrial panel of judges.

The tribunal’s jurisdiction would take effect only when national courts could not or would not prosecute or after the complete breakdown of a national judiciary and would be limited to war crimes, genocide and crimes against humanity.

Aggression--the invasion of one state by another--will be added to the list of crimes once it is precisely defined to the satisfaction of treaty adherents.

Violence against women, including rape, sexual slavery, forced prostitution and forced pregnancy, has been codified as a war crime for the first time.

The maximum sentence facing defendants would be life imprisonment. Other prison terms up to 30 years would also be permitted. Prisoners would be incarcerated in countries that volunteer to provide facilities.