Global Court Near Despite U.S. Rebuff

The United States is dead set against it, and its most optimistic advocates had long thought it would be many years before judges called the new court to order.

But today, the International Criminal Court, the first global tribunal since the World Court set up shop in the Netherlands a century ago, is to be ratified in a ceremony here by more than the required minimum of 60 U.N. member states, a group including most leading U.S. allies.

Within 12 to 18 months, legal experts say, magistrates from around the world will assemble in the court’s temporary quarters in The Hague and begin examining charges of war crimes, genocide and other offenses “against humanity” punishable by sentences in the court’s own jails.

But the Bush administration says it wants to ensure that U.S. citizens will never appear in the court, which it fears could be used for politically motivated prosecutions of U.S. troops or officials stationed abroad.

Determined to dramatize its opposition, the administration is planning to take the highly unusual step of “un-signing” the international treaty that sets up the court, annulling the signature of President Clinton in December 2000, U.S. officials said Wednesday.

Washington Plans to File a Revocation

Formal notification of Washington’s revocation will be filed at U.N. legal offices within a week or two, said the officials, who asked not to be identified. Pierre-Richard Prosper, the U.S. ambassador at large for war crimes, said in New York last month that the administration was considering “un-signing” as one of its options.

American critics of the administration’s plan note that it will strip the United States of its rights as a signatory to participate in the selection of judges and cases but won’t stop the court from coming into being.

“We believe un-signing would be a silly and petulant act that will have no effect in stopping the momentum that has spurred this institution forward,” Richard Dicker, director of the international justice division of Human Rights Watch, said Wednesday. “There has been a sea change against the impunity all too often associated with these horrific crimes. What the Bush administration decides to do in the near future will not derail that--it will simply put the Bush administration on the wrong side of history.”

The court can prosecute only nationals of countries that have ratified the treaty.

Ratifying nations can avoid prosecutions of its citizens in the international court by undertaking their own domestic legal action against the accused. The U.N. Security Council can override such action by referring cases to the court, but U.S. veto power in the council should prevent abuses against U.S. nationals, the court’s advocates say. The council can also mandate suspensions of International Criminal Court trials.

The U.S. Senate was never expected to even consider ratification without a strong push from the executive branch. But as long as the treaty remains signed, Senate Democrats who support the court retain the option of submitting the treaty for debate and possible ratification.

U.N. legal experts say there is no precedent for the removal of a U.N. treaty signature, a contention the State Department doesn’t challenge.

But the administration, backed strongly by Republicans in Congress and conservative foreign policy analysts, believes that the court as now constituted is irredeemably flawed.

Some veteran U.S. diplomats have warned about the politicization of previous U.N.-affiliated human rights forums and institutions, where divisive issues such as the Israeli-Palestinian conflict can come to dominate proceedings to the exclusion of other problems.

In January, President Bush signed into law a defense appropriations measure forbidding military funds from being used “to cooperate” with the International Criminal Court. Senate and House leaders are meeting in conference committee this week to draft a joint version of a proposed American Servicemembers’ Protection Act, which could restrict military aid to countries participating in the court (with an exemption for North Atlantic Treaty Organization members and a few other key allies).

The bill as passed in the House would ban U.S. participation in U.N. peacekeeping missions unless American personnel are specifically and “permanently” exempted from war crimes prosecutions by the court.

The Clinton administration had opposed several provisions of the treaty as it was adopted at an international conference in Rome four years ago. Joined by Israel and China, the only other open dissenters, the U.S. voted against the final document. But to preserve U.S. influence over the new court, Clinton signed the treaty Dec. 31, 2000, three weeks before he left office and the last day on which signing was permitted.

From the start, the principal U.S. objection was that the court would be legally autonomous and independently funded, with links but not subservience to the Security Council. Washington wanted member states to have individual veto power over cases involving their own nationals, a proposal roundly rejected in Rome. Such a provision could have, in effect, blocked prosecutions similar to those now underway against former Yugoslav President Slobodan Milosevic and former Rwandan leaders, supporters say.

“That would cripple the court,” Philippe Kirsch, the Canadian diplomat who chairs the U.N. committee charged with setting up the new tribunal, said here Wednesday.

“We would all like to see the U.S. on board, “ he added. “But its absence is not going to prevent the court from functioning, because the court is supported by many states, including all U.S. allies.”

Ratification Was Expected to Take Longer

When the court treaty was adopted in Rome, most experts thought it would take about a decade for the required 60 countries to ratify it in their parliaments, a process that in many cases involved extensive rewriting of other statutes. But as of last week, 56 states had subscribed, and today the United Nations will receive ratifications from 10 more. So far, 139 countries, including the United States--for now--have signed the treaty.

On July 1, U.S. opposition notwithstanding, the treaty establishing the court will formally come into effect. The treaty is not retroactive; the court can prosecute only new alleged rights violations, and advocates say they hope that its mere presence may act as a deterrent.

Signatory countries will meet here in September to begin selecting judges, and the court could start operating at its interim offices as early as next spring, Kirsch and other experts say. “The statute creating the court is an extremely watertight document, with all kinds of safeguards to ensure that the court will be a legal instrument and not a political instrument, which is, I think, the underlying U.S. concern,” Kirsch said.

The court is backed by virtually every U.S. human rights organization, as well as many liberal church groups. The decade-long international campaign to create the court has been underwritten in large part by leading U.S. philanthropies, from the Ford and MacArthur foundations to George Soros’ Open Society Institute. But its U.S. opponents include the top brass of the Pentagon, the Republican congressional leadership, the National Security Council and, most important, Bush himself.

Still, a new national Roper poll released Wednesday showed that most Americans--61%, according to the survey--had never heard of the International Criminal Court. Told that “over 100” countries favor the court’s creation but that the U.S. does not, 57% of those polled said the U.S. should support the court and 37% said it shouldn’t, according to the Lawyers Committee for Human Rights, a court backer, which commissioned the survey.