Both Parties Agree: US Immune to War Crimes Prosecution

Saul Thomas stthomas at
Wed Jun 14 11:57:18 MDT 2000

GOP Bill Would Bar U.S. Cooperation in War Crimes Tribunal

By Colum Lynch Special to The Washington Post Wednesday, June 14, 2000 ; A14

UNITED NATIONS, June 13 –– Republican leaders said today they will
introduce legislation in Congress to bar the United States from cooperating
with an international war crimes court unless the Senate ratifies the
treaty establishing the court.

The move will complicate the Clinton administration's last-ditch effort to
persuade other members of the United Nations to accept rules that
effectively would exempt U.S. soldiers from prosecution by the
International Criminal Court.

David Scheffer, the U.S. ambassador at large for war crimes, has been
telling diplomats here that in exchange for the exemption, the U.S.
government would consider giving the court financial, diplomatic and
technical support--even if the United States does not sign the treaty and
become a formal "party" to the court.

"It is critical that the United States armed forces not be subject to
physical surrender," Scheffer said in an interview today. "If we can get
this fix in the treaty . . . the United States will be a good neighbor to
this treaty. . . . We have many things to offer and will be in a position
to offer those assets."

The new bill, however, would prohibit such assistance. It also would
require that American personnel be granted immunity by the court before
participating in any U.N. peacekeeping mission. And it would prohibit U.S.
military assistance to any country that has ratified the treaty, with the
exception of NATO and some other U.S. allies, such as Israel.

The bill is expected to be introduced Wednesday in the Senate by Jesse
Helms (R-N.C.), chairman of the Foreign Relations Committee, and John W.
Warner (R-Va.), chairman of the Armed Forces Committee.

Warner said they might attach it to the Defense Department's budget
authorization bill. "We cannot send our service people into harm's way
unless we provide immunity from a worldwide tribunal like this," he said.

A House version of the bill, called the American Serviceman's Protection
Act, will be introduced by Majority Whip Tom DeLay (R-Tex.) and Floyd
Spence (R-S.C.), chairman of the Armed Services Committee.

"The legislation is intended to protect U.S. citizens, especially military
personnel, from wrongful and malicious prosecution," said Jonathan Baron, a
spokesman for DeLay. "It would prohibit any U.S. government entity from
cooperation with the ICC in matters such as arrests, extradition of
suspects, searches and seizures, taking of evidence or seizure of assets."

The International Criminal Court was established at a conference in Rome in
July 1998 to prosecute perpetrators of the most heinous offenses, including
war crimes, genocide and crimes against humanity. Ninety-seven countries
have signed the treaty, and 12 have ratified it. The court requires
ratification by 60 countries before it goes into force.

Only seven countries--including the United States, Iraq, Libya and
China--opposed the creation of the court in Rome. Diplomats and court
advocates say they expect the tribunal, which will be based in the Hague,
to begin its work in the next two years with or without the participation
of the United States.

Last week France became the first permanent member of the Security Council
to ratify the treaty, increasing the likelihood that the court will become
a reality.

"This court is going to come into being whether Senator Helms likes it or
not," said Richard Dicker, an expert on the court at Human Rights Watch. He
added that Helms's opposition is merely "widening a schism between the U.S.
and its closest allies."

Delegates from 110 countries are meeting at the United Nations this month
to hammer out the court's rules of procedure and evidence. The European
Union and other supporters of the court fear that a U.S. exemption would
undermine the tribunal before it has a chance to try its first case.

The European Union has rejected a U.S. proposal to deny the court
jurisdiction over suspects from any country that has not ratified the
treaty, unless that country's government specifically consents or the
Security Council approves a trial. Because the United States has a veto on
the council, that proposal would have allowed the U.S. government to block
any trial of a U.S. citizen.

Scheffer said the United States has since dropped the reference to the
Security Council and revised its proposal to address European objections
that war criminals from such states as Iraq and Libya would escape
prosecution. "We are looking at ways to ensure that irresponsible nations .
. . cannot take advantage of this privilege of non-surrender to the court,"
he said.

Scheffer added that the United States still hopes one day to become a
member of the court. But if he fails to strike an agreement before the U.N.
session ends June 30, he warned, "the consequences will be serious. The
ability of the United States to continue to participate in this process and
anticipate any cooperative relationship with the court will be severely

Critics of the United States say the court's drafters have provided
adequate safeguards to ensure that U.S. military personnel are not
subjected to frivolous prosecution. For example, the court would not have
jurisdiction if the United States conducted an investigation and trial in
its own courts.

"This court is meant for people like Foday Sankoh and situations like
Sierra Leone, where the justice system becomes inoperative amidst turmoil
and civil war," said Dicker of Human Rights Watch.

Staff writer Helen Dewar contributed to this report from Washington.

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