US struggles to limit the reach of a global court

For the United States, it came down to one of two choices: protect GI Joe or push to punish Osama bin Laden. Washington picked GI Joe.

That was two years ago.

And as the US watched from the sidelines last Friday, more than 100 countries approved key provisions for the world's first permanent court for war crimes, the International Criminal Court (ICC), which is expected to be up and running within five years in The Hague, Netherlands.

The US, along with Iraq, voted against the creation of a court that will investigate, indict, prosecute, and imprison people accused of genocide, war crimes, and crimes against humanity.

Still, on Friday, nations backing the ICC left the door open for US participation in the November deliberations that will define the court's relationship with the United Nations.

David Scheffer, the US ambassador at large for war crimes says the provision reflected the European countries will to keep the Americans involved in the court initiative, at least as a non-party member.

"This is not cookie-cutter time," says Scheffer, who is in charge of negotiating the American amendment. "It is time to think pragmatically about how most effectively we can achieve international law. The US can be useful to the ICC, but we need to feel comfortable as a nonparty. Ironically to become a party we need to get the nonparty statute right."

For decades, the American leadership has fought hard to bring to justice what it calls the tyrants that spread terror around the globe. It has called upon nations to set up a permanent institution similar to the Nuremberg Tribunal, to free the world from the Saddam Husseins and Slobodan Milosevics.

But by pushing hard to deliver such an international tribunal, the United States gave birth to a body much more independent than it had anticipated. In Rome two years ago, 120 countries voted to create the first International Criminal Court, that in theory will supersede legal jurisdiction over some American citizens.

The US bailed out from the vote, along with China, Iraq, Libya, and three other countries. Analysts say Washington realized that the possibility of its servicemen, like Lt. Col Oliver North widely-believed to have masterminded the so-called Iran-Contra scandal - could also be prosecuted for war crimes.

"If it was proven that Oliver North knew about the atrocities that were committed by the Contras, yes, he could also have been held accountable before the ICC, had it existed at the time," says William Pace, head of the Coalition for an International Criminal Court.

Just last month, Svend Robinson, a Canadian parliamentarian called for prosecuting NATO Commander and US Gen. Wesley Clark for crimes during the Kosovo campaign.

For such reasons, the United States pushed hard in the discussions to introduce a rule that would narrow the court's jurisdiction by precluding it from trying US officials and military, if accused of war crimes.

Still, the US did not get the immunity it was seeking. The delegates reaffirmed that the ICC court can indeed prosecute all party and nonparty state nationals, dictators, as well as US soldiers. But they did get a small assurance, in a form of convoluted legal language in the text, that the negotiations on the issue had not yet been closed.

Most of the nongovernmental organizations involved in international law were very wary of the US amendment. They argue that the court already offers many safeguards to Western nations that are involved in overseas operations, like France, which ratified the treaty two weeks ago. They say the US is walking a fine line. While the US is not a signatory to the treaty, Washington is also cautious of not being isolated on the international scene.

Sen. Jesse Helms (R) of North Carolina, the chairman of the Senate Committee on Foreign Relations, has said the treaty would be "dead on arrival," if it ever reaches his office for ratification.

So far, 13 countries have ratified the treaty of a total of 60 needed for the court to start operating.

Richard Dicker, an associate counsel for Human Rights Watch, says the ICC will be a landmark in international law.

With or without the US, the ICC has secured enough support and financial resources from the international community to make it a reality, Dicker says. He thinks the Americans will join the court sooner or later.

"When the US realize that the court is not a vehicle to prosecute American soldiers, I think the US will support it," Dicker says. "And if this court tries Saddam Hussein, the US government will be practical enough that they will want to support it."

(c) Copyright 2000. The Christian Science Publishing Society