- The Washington Times - Monday, January 8, 2001

NEW YORK U.S. conservatives are organizing an assault on the U.N.-sponsored war crimes tribunal, saying President Clinton's surprise New Year's Eve signature on the treaty must be swiftly and surely erased.

"It is vital that we take deliberate and unequivocal action," said a spokesman for Sen. Jesse Helms, North Carolina Republican and chairman of the Senate Foreign Relations Committee.

Spokesman Marc Thiessen said several options would be open to George W. Bush following his presidential inauguration later this month.

"The new president can simply unsign the treaty. Or he can inform the United Nations that he is repudiating the signature. Or he can subject it to the [U.S.] Senate for ratification with a recommendation for rejection," he said.

"We can work with the president to develop the range of options," he added, declining to say whether these discussions had taken place.

Many in Washington are demanding that the incoming Bush administration "unsign" the treaty, which legal scholars say would be an unprecedented repudiation of an international agreement.

Conservative lawmakers also are examining changes in domestic law that could nullify Mr. Clinton's accession to the 1998 agreement creating the war crimes tribunal.

Specifically, they are mulling the revival of a bill that expressly forbids any U.S. agency or program from cooperating with the treaty organization in any way.

"If a mistake were made, a president would have the ability to correct it. This is the same thing," said John Bolton, a State Department official in the 1989-93 Bush administration and now a senior vice president at the American Enterprise Institute.

He demanded the incoming administration "march up to New York with a bottle of Wite-Out."

President Clinton quietly dispatched a State Department official through the snow to the United Nations on New Year's Eve to sign the statute creating the International Criminal Court, or ICC a permanent tribunal that will hear charges of genocide, war crimes and crimes against humanity.

The treaty is unusual because its creators claim "universal jurisdiction," meaning that its laws apply to all nations, even those that are not a party to it.

Mr. Clinton signed with reservations, noting that the court did not provide adequate protections for U.S. service members who might be subject to politically motivated prosecutions.

Despite this, he said, by signing before a year-end deadline, American negotiators could continue to shape the court's infrastructure. He said his successor should wait before sending the treaty to the Senate for ratification.

Conservatives, many of whom oppose the court on philosophical as well as procedural grounds, are infuriated by what they see as an attempt to tie the hands of the incoming administration.

Many want Mr. Bush to promptly send the treaty to the Senate for almost certain rejection, effectively killing the matter unless a future president decides to reconsider it.

The incoming administration has not said publicly how it plans to deal with the issue.

"This is a flawed treaty," said Juleanna Glover Weiss, spokeswoman for the Bush transition team in Washington. "We believe there are problems with [the ICC statute] and it's something we would revisit before sending it to the Senate for ratification."

Donald H. Rumsfield, nominated as defense secretary, has endorsed a bill that would prevent any U.S. cooperation with the court, including the sharing of evidence, apprehension of suspects or financial support.

Mr. Helms, who co-authored the American Service Members Protection Act with House Whip Tom DeLay, Texas Republican, vowed last week "to make reversing this decision, and protecting American fighting men and women from the jurisdiction of this international kangaroo court, one of my highest priorities in the new Congress."

The service members bill would bar cooperation between Washington and the Netherlands-based tribunal, as well as cut off U.S. military aid to allies who ratify the ICC. An exception is made to permit continued U.S. cooperation with its NATO allies, all of whom have signed the treaty. Israel, which had publicly opposed the treaty, also signed it Dec. 31.

The bill is supported by former secretaries of state from the Bush, Reagan, Ford, Carter and Nixon administrations and appears to have broad support in Congress.

Legal analysts are less certain about the notion of "unsigning" the treaty.

"No one has ever tried to unsign a treaty, that I know of," said Palitha Kohona, chief of the U.N. treaty section. "I guess a nation could just let it stand and not do anything. That is why treaties are signed prior to ratification. If there is a change of heart, they do not ratify… .

"A signature doesn't require a state to do anything in a positive sense," added Mr. Kohona, whose division administers 524 multilateral conventions. "At the same time, it does obligate a state not to do anything that undermines the treaty."

Mr. Kohona said it would be up to the treaty signatories to decide whether passage of the Service Members Protection Act amounted to an undermining of the treaty. He said they might choose to ignore it as normal domestic politics in a government well known for tolerating divergent political opinions.

But some analysts including human rights advocates who helped draft the treaty language say the bill does contravene the aims of the treaty.

Mr. Bolton argued that Congress "is perfectly free to pass any statute it wants to." But, he said, by "unsigning" the treaty the new administration could remove any ambiguity on that point.

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