- The Washington Times - Wednesday, June 14, 2000

Legislation to be introduced in both houses of Congress today would cut off U.S. military aid to countries that ratify a proposed International Criminal Court and authorize the use of any "necessary" means to break U.S. soldiers out of its jails.

The bills set the stage for a confrontation with U.S. allies and others who are meeting this month in New York to finalize rules and administrative procedures for the planned court, which the United States fears would subject U.S. soldiers to political show trials and criminal prosecution.

A treaty establishing the court already has been signed by almost 100 countries including all of the major European powers and ratified by 12 of them.

The bill to be introduced in the Senate today by Sen. Jesse Helms, North Carolina Republican, would bar all U.S. agencies from cooperating with the court, including the arrest of suspects or provision of information.

Dubbed the American Service Members Protection Act, it would cut off U.S. military aid to any country that ratifies the ICC and prohibit U.S. forces from participating in U.N. peacekeeping operations unless expressly immunized from the court's jurisdiction by a U.N. Security Council resolution.

It also authorizes the U.S. president to undertake any means "necessary and appropriate" to free U.S. or allied soldiers from ICC captivity.

A coalition of House members plans to introduce an identical bill in that chamber.

"As currently constructed, the ICC would jeopardize U.S. military personnel… . This allows any nation, under dubious circumstances, to prosecute military personnel for war crimes," said Jonathan Baron, spokesman for House Majority Whip Tom DeLay, Texas Republican and a key co-sponsor.

Mr. DeLay expects "broad support" among House Republicans for the bill.

A provision in the bills effectively would remove the threat of a military cutoff of the NATO countries, virtually all of which have signed the treaty.

Other major recipients of U.S. military aid such as Israel, Egypt, Turkey and the Philippines have not signed the treaty, meaning the impact would be felt most strongly by smaller countries in Asia and Africa.

The international court "is being driven by the Third World," said a senior Republican Senate staffer. "We're going to put a cost on this."

One major military aid recipient that could be affected is Colombia, which has signed the treaty.

The legislation comes as top State Department legal officials are at the United Nations this week to seek measures that would protect the soldiers of any nation that has not ratified the treaty. The Americans see their proposal as the last chance to create a court they can live with.

"This really is a final effort to accommodate our most fundamental concerns about the treaty, which is our exposure to it as a nonparty," said David Scheffer, the U.S. ambassador for war crimes issues.

The United States already is barred by law from contributing financially to the court, either directly or indirectly through U.N. regular budget assessments.

Last year's State Department-authorization bill prevents the government from providing money or from extraditing U.S. citizens to the ICC unless the Senate first ratifies the treaty.

But there is much the United States could do to help the court if it reaches a compromise that heads off the bills being introduced today.

"Our role in the court could be considerable," said Mr. Scheffer. "In the Security Council, we can refer matters and enforce [compliance].

"We have the ability to relocate witnesses, to provide expert personnel for the work, our diplomatic clout to encourage cooperation with such a court, the ability to share information in compliance with federal law."

Changes in the court proposed by Mr. Scheffer would permit the prosecution of citizens of countries that do not sign the treaty only with the approval of the home country or the Security Council, where the United States has a veto.

Human rights groups and some European allies say the language would make the court powerless against the likes of Iraq's Saddam Hussein. But pressure is building for nations to reach terms with the United States if they want the court to succeed.

Until the shape and scope of the court are decided, officials are unwilling to guess at what it will cost to set up and operate the ICC. Nor is it clear how the court will be funded.

The existing treaty language calls for the court to be financed by nations that have ratified it. But a provision would seek additional funding from the United Nations and other parties that wish to contribute once the treaty takes force, likely in the next year or two.

The court's chambers and offices would be located in or near The Hague, which is home to the International Court of Justice, an ad hoc tribunal for Yugoslavia, and bodies that enforce compliance with other treaties such as one monitoring chemical weapons use.

U.N. member states are paying about $200 million this year to fund the special tribunals prosecuting war crimes in Rwanda and the Balkans. Those courts, created by the Security Council in 1994 and 1993 respectively, likely will be folded into the ICC in future years.

Before that can happen, the court must acquire land, erect a building, stock a law library and set up a computer system.

The ICC will require a permanent staff of prosecutors, investigators, translators and an administrative office. Significant resources will be allocated for lawyers to defend those brought before the court.

Once the court is up and running, the operating expenses will depend on the nature of the cases it undertakes.

Delegates, U.N. officials and legal experts shudder at the thought of attempting such an ambitious project without U.S. participation.

The United States pays about 25 percent of the budget for the two ad hoc tribunals, contributes specialized personnel to the two bodies and shares intelligence with prosecutors.

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