- The Washington Times - Monday, July 1, 2002

NEW YORK The world's first permanent war-crimes tribunal becomes a reality today over the vehement objections of the Bush administration, which moved to end its U.N. police mission in Bosnia-Herzegovina.
The administration has been lobbying against the International Criminal Court at all diplomatic levels, and yesterday the Bush administration vetoed a renewal of the U.N. police mission to Bosnia, rather than expose 64 Americans to possible prosecution by the ICC.
However, the United States later joined in a unanimous Security Council vote to extend the Bosnia mission for 72 hours, rather than let it expire at midnight. The extension gives the Security Council a bit of extra time to resolve U.S. objections to the court.
American officials are particularly worried that U.S. troops will be hauled before the international court by a politically motivated prosecutor.
"It seems not to have any endpoint. It seems not to have any focus. It's across the board," Defense Secretary Donald H. Rumsfeld said last week, speaking about the ICC. "A politicized or a loose-cannon prosecutor in a court like that can impose enormous difficulties and disadvantages on people, individuals, governments."
What some U.S. officials see as unchecked power is praised as judicial independence by many European and Latin allies, human rights activists and international law experts.
Supporters see the court as the fulfillment of a half-century effort to arrest and try the perpetrators of gross human rights violations, including ethnic cleansing, forced displacement, systematic rape and other horrors of war.
The court's entry into force today "holds the promise of a world in which the perpetrators of genocide, crimes against humanity and war crimes are prosecuted when individual states are unable or unwilling to bring them justice," said U.N. Secretary-General Kofi Annan. "It gives the world a potential deterrent to future atrocities."
The three indictable offenses war crimes, crimes against humanity and genocide are clearly limited in the court's statute to atrocities and gross human rights violations such as systematic rape or torture, the mass displacement of specific populations, and the destruction of a specific culture or a people.
But U.S. officials fear that in practice there is enough latitude that hostile governments could demand an investigation of U.S. soldiers or military policy.
"This issue is not whether our peacekeepers or soldiers are ever going to be guilty of committing the kind of crimes the world court is meant to cover," said Marshall Billingslea, the U.S. deputy undersecretary of defense for negotiations policy.
Rather, the ICC "concentrates power in the hands of an unaccountable prosecutor who is in our view capable, in theory, of conducting politically motivated, politically charged investigations," he said.
"Could you imagine the consequences of a prosecutor investigating Operation Enduring Freedom?" he asked, referring to the U.S.-led military operation to end Taliban rule in Afghanistan.
Officials are also concerned about the possibility of prosecutions related to the use of depleted uranium bullets, the laying of land mines and high-altitude bombing that sometimes kills civilians.
One hypothetical is offered by a U.S. official: Lt. John Ballyntyne is leading a U.S. patrol through a tense Bosnian village when stones are thrown. Although the officer is a three-year peacekeeping veteran, he panics, spraying the hillside with automatic fire and killing 12 persons.
In its routine inquiry, the Pentagon determines that Lt. Ballyntyne overreacted, but does not find evidence of a massacre. He is discharged. Years later, on vacation in a country that has relations with the ICC, he is arrested and extradited to the Hague-based tribunal.
The scenario is not technically a war crime. Lt. Ballyntyne was not following orders to depopulate a village. Nor was he aiming only at Muslims, or men of fighting age.
But U.S. officials fear that a zealous world court prosecutor could make that case, charging that the officer was in fact bent on killing Muslim civilians. Furthermore, he or she could say anyone who failed to stop him from the secretary of defense to commanders in the field is also culpable.
Legal experts scoff at the scenario, saying there is no conceivable way an American can come before the court. But the Bush administration, joined by many lawmakers, is not taking chances.
Unable to shield service members and government officials by opting out of the court, they have tried to limit the reach of the new tribunal.
The administration in April renounced any cooperation with the court, whose founding treaty was signed in the final days of the Clinton administration.
It has also endorsed the American Service Members Protection Act (ASPA) versions that have passed through the House and Senate.
ASPA is designed to prohibit cooperation with the court by U.S. officials. It potentially rules out the apprehension of indictees, sharing of military intelligence or funding for any aspect of the Hague-based tribunal. The legislation has angered ICC signatories and international human rights activists.
In the Security Council, the Americans have been trying to win support for an omnibus resolution that would exempt the soldiers, civilians and officials of peacekeeper-contributing nations from any foreign prosecution.
U.S. diplomats admit they have no support for that, and have instead been trying to insert exemptions into the mandates for individual peacekeeping missions.
Diplomats debated the implications into last night.
The rift has reinforced the popular perception of the United States as an increasingly unilateralist superpower, unwilling or unable to work with other nations until its own interests are threatened.
"The United States is burning bridges before they even come to them," said Richard Dicker of Human Rights Watch International, an early proponent and a de facto architect of the court.
The United States was an early supporter of the effort, which got under way in 1996, but became increasingly uneasy when it became clear it would not be able to use its Security Council veto to block indictments. The court, which will be based on a former military base on the outskirts of The Hague, has been ratified by 74 nations. Another 64 have signed onto it.
Fred Gedrich, senior policy analyst at the conservative watchdog group Freedom Alliance, said the court may have the support of a majority of nations, but their combined population is less than one-sixth of the world's total.
"They say they have some type of global mandate, but in my view they don't," said Mr. Gedrich, who is also concerned about the erosion of U.S. sovereignty.
The court is supposed to administer justice when a state cannot or will not take up a prosecution. It draws its legal authority from the Nuremberg trials of Nazi soldiers and collaborators.
The ICC is not retroactive, but if it were, say proponents, the fantasy dock would be filled with such pariahs as Adolph Hitler, Pol Pot, Saddam Hussein, Slobodan Milosevic and Foday Sankoh.
The world court has strict rules of evidence and procedure, but few boundaries. Its mandate, in theory, allows it to prosecute soldiers all the way up the chain of military and political command. Its rules place no statute of limitations on crimes committed from today forward.
Most alarming to U.S. officials is that the tribunal's prosecutor and judges can investigate citizens of countries whose governments have decided not to join the court.
In theory, the new court will have the power to apprehend American defendants and compel testimony from U.S. experts and witnesses even though the United States is not a participant in the court.
Eventually, the new tribunal will also have the power to prosecute individuals for the still-undefined crime of aggression. Experts say a definition is at least a decade away, if they ever agree on one at all.
The Defense Department says the right to level that accusation is reserved by the U.N. Charter for the Security Council and individual states not the new world court.
Pentagon officials also scoff at the idea of prosecuting Americans for military action in Afghanistan, where U.S. forces have routed the Taliban and are purging the failed state of foreign fighters training in al Qaeda camps.
They note there has been sustained international criticism of the United States for its use of sophisticated weaponry, such as the firing of depleted uranium bullets in Iraq and Kosovo or the high-altitude bombing over Kosovo and Afghanistan.
The prosecutor of the International Criminal Tribunal for the Former Yugoslavia, Carla del Ponte, has twice rejected calls for investigations of U.S. actions.
In an effort to quash what Washington considers nuisance suits, its diplomats have tried for five years to persuade other nations to funnel prosecutions through the U.N. Security Council, where Washington holds one of five powerful vetoes.
But few governments including veto-holders France and Britain would agree, saying the risk of politically motivated protection was too great inside the often-divided council chambers.
Without those protections, the Pentagon has made no secret that it is re-evaluating its commitment to U.N. peacekeeping missions and renegotiating its relationships with military partners.
Diplomats have been quietly insulating U.S. troops against the treaty by inserting protective language into bilateral accords called Status of Forces Agreements. Under these updated treaties, governments agree not to extradite Americans to the ICC or any other outside court.
Washington has already decided to withdraw nearly 80 Americans from the peacekeeping mission in East Timor.
"We run a cost-benefit analysis on every operation," said the Pentagon's Mr. Billingslea, "and the ICC is very expensive." U.S. officials stress that they will not hesitate to protect U.S. interests and those of close allies.
That includes Israel, whose incursions into the West Bank have drawn sustained criticism from Arabs, Europeans, the United Nations and sometimes Washington. Israel has signed but not ratified the ICC statute.

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