Why US Won't Back A World Criminal Court

Washington's Worry: US Soldiers Put on Trial Abroad

As diplomats from more than 100 nations celebrate a proposed treaty on an international criminal court, the United States is pondering its options for damage control .

The document that emerged from a conference in Rome last week still must be ratified by 60 countries before the court can be established in The Hague.

"We will reserve the right to actively oppose the treaty," State Department spokesman James Rubin said in a statement Monday. As a first step, Washington will lobby for changes in the document.

Washington was one of just seven nations who opposed the treaty, including China and Israel but not Russia and European allies. Britain, Canada, and Germany were vocal proponents of a strong, independent court. France jumped on board at the last minute after an opt-out clause was added, essentially granting its soldiers a seven-year immunity from prosecution for war crimes.

This is not the first time that the US has taken the lonelier path in international agreements. Last December it refused to support a treaty banning land mines, contending that American soldiers would be endangered.

Seven months later, the safety of American troops is still on the Clinton administration's agenda. As the nation with the largest military presence outside its borders, the US worries that its soldiers could be brought to trial for political reasons. Senate Foreign Relations Committee chairman Jesse Helms (R) of North Carolina has said he would block any treaty that could bring Americans before an international court.

American negotiators in Rome insisted the Security Council be given the authority to initiate investigations. But human rights activists balked, arguing that the Security Council would only politicize the court and render it ineffective.

Most of the delegates in Rome agreed, voting overwhelmingly to have a prosecutor with the ability to initiate investigations in matters of genocide, war crimes, and crimes against humanity. A panel of judges would determine whether a case would be tried.

Washington pushed for the stipulation that soldiers could not be prosecuted in most cases without their country's consent. This would essentially preclude any Americans from appearing in The Hague because Washington could say no.

But as the proposed treaty stands, crimes fall under the court's jurisdiction if they are committed either by or in a country that signed the treaty. So, depending on one's view, the court's jurisdiction can be too broad - or too limited.

If Cambodia does not sign, for example, and a new Pol Pot massacres people, he is not within the court's grasp. Yet at the same time, countries that are not party to the treaty can see their soldiers brought before the court if they were alleged to have committed crimes in a country that signed the treaty. If Serbia signs, hypothetically speaking, and American peacekeepers allegedly commit crimes there, they could face charges.

"The Pol Pots of the world can ... be protected, while the peacekeepers are prosecuted," Mr. Rubin said.

"International law has not before seen a treaty try to impose itself on those who have not signed it," he added.

The court's jurisdiction indeed has a wider breadth than many diplomats had anticipated. Even fighting between rebel groups can be reviewed.

In the end, the document amounted to a bundle of compromises that some human rights activists say is too weak - and Washington says is too strong.