Heading for Hague-iarchy

0 Comments | Insight on the News, Jan 24, 2000 | by Betsy Pisik

The United States has strenuously objected to a U.N. treaty draft establishing an international criminal court in The Hague, which seeks jurisdiction even over countries that don't join.

The United States may have resigned itself to the eventual creation -- over Washington's objections -- of a U.N. International Criminal Court modeled after war-crimes tribunals for Rwanda and the former Yugoslavia. Even if the United States does not ratify the treaty, American citizens could be subject to arrest and trial under the sweeping language which the United States has not signed nor ratified.

Legal authorities recently gathered at the United Nations to discuss the fine print. "We expect many nations to ratify by the end of next year," says David Scheffer, assistant secretary of state for war crimes. The presence of many U.S. allies on the court would ratchet up pressure on the United States to join, he says, but "we're never going to sign a treaty we can't support."

The court will prosecute allegations of war crimes, genocide and other crimes against humanity and will do so without direct authorization of the U.N. Security Council, where the United States holds a veto. Although it has no enforcement mechanism, it purports to include all nations, even the United States, as subject to the international court's so-called jurisdiction. All nations supposedly would be required to comply with the court's demands for information, evidence, witnesses and suspects. The court's reach will not be retroactive, but the existing tribunals for Rwanda and the former Yugoslavia eventually will be under its umbrella.

The United States voted against creating the court last summer in the negotiating sessions, arguing that the structure of the tribunal would not protect American troops from frivolous or politically motivated indictments and prosecutions. Several nations and legal experts have complained that any protections afforded to American troops would be more than enough to shield notorious rulers such as Iraq's Saddam Hussein. U.S. negotiators also hope to strengthen provisions for national prosecutions that would preempt the international tribunal's jurisdiction and to define agreed-upon crimes and rules of procedure.

In voting against the court's creation, the United States joined a curious collection of nations: Iraq, Libya, Israel, Russia, China and India. Supporters range from Germany to South Africa to Australia -- an increasingly diverse and powerful bloc of nations that proponents say will provide the political leadership and financial heft to ease concerns of smaller and more cautious nations.

So far, 90 nations have signed the treaty, including all of the members of the European Union, which has promised financial and legal assistance to the court, to be located in The Hague, Netherlands. Only five countries have ratified it formally, however. Ratification by 60 nations is required for the tribunal to begin working -- which observers expect to happen within the next two years. France has committed to ratifying it within the next few months, and Britain, Canada and the Netherlands say they will do so within the next year.

The financing of the court has not been decided, but many nations hope that the bulk of the court's expenses, particularly in the start-up years, will be paid from the U.N. regular budget. Washington could be assessed up to one-quarter of the court's budget, even if it does not accept the treaty.

Legal advocates and delegates from around the world repeatedly have said that the court will be limited severely without the financial, legal and intelligence-gathering capacities of the United States. "There is no doubt the court would be much stronger with the United States than without," says Bruce Broomhall, an observer with the Lawyers Committee for Human Rights. However, it is "out of the question" that signatories would allow Washington to renegotiate portions of the treaty.

Foreign delegates say they increasingly doubt whether Washington can be reassured. "We cannot recognize the court's competence in bringing prosecutions against U.S. personnel engaged in official actions when the U.S. government is not a party," Scheffer told the U.N. legal committee in October.

Senate Foreign Relations Committee Chairman Jesse Helms, a North Carolina Republican, has said the treaty will be "dead on arrival" if the president ever submits it for Senate ratification. According to Scheffer, U.S. officials have not yet decided whether to simply ignore the court or actively work against it. "We're not going to make that decision until the end of next December."