RIGHTS Can Criminal Court Survive Without United States?

RIGHTS-UN

Can Criminal Court Survive Without United States?

By Farhan Haq

UNITED NATIONS, May 14 (IPS) - Supporters of a proposed world court, before which war crimes would be tried, face a difficult question: Can such a body succeed if the United States does not participate?

Right-wingers in the Republican Party, which holds a majority in the U.S. Congress, have been openly suspicious of almost all international treaties and bodies - and the proposed International Criminal Court (ICC) is no exception.

With month-long negotiations for the ICC set to begin in Rome June 15, human rights experts and U.N. diplomats say there is almost no chance that Washington will support the Court in the near future.

As a result, the Court's backers may opt to concentrate on building support for the ICC among other nations in hopes the United States will not want to be left out for too long.

''My own sense is that you don't have to have the United States ratify (the Court) in the first two or three years to get it going,'' says Jeff Laurenti, executive director of policy studies at the United Nations Association for the United States (UNA-USA).

If the Court has a few successes in its early years, then the United States may be tempted to join, he argues. In any event, according to Laurenti, no approval will be forthcoming as long as right-wing Senator Jesse Helms of North Carolina remains as chairman of the U.S. Senate's Foreign Relations Committee.

Helms, in a letter two months ago to U.S. Secretary of State Madeleine Albright, insisted that the ICC would be ''dead on arrival'' in the Senate unless Washington had clear veto power over the Court.

The depth of right wing animosity can scarcely be overstated. ''Helms considers the ICC to be the most dangerous threat to sovereignty since the League of Nations,'' says Marc Thiessen, the senator's spokesman.

Unless there were clear U.S. control over the Court, Helms ''would not hesitate to play Henry Cabot Lodge,'' Thiessen adds, invoking the name of the senator who prevented U.S. participation in the short-lived League of Nations.

The Republicans are not alone in seeking to restrict the ICC's powers. A recent Pentagon memorandum sent out to more than 100 military attaches overseas cautioned that Washington is ''intent on avoiding the creation of the wrong kind of court.''

Ambassador David Scheffer, the senior U.S. State Department negotiator in recent discussions on the Court's composition, specified what the ''wrong kind'' of ICC would be when he warned against a Court that would arbitrarily subject militaries participating in peacekeeping or humanitarian work to criminal proceedings.

''The permanent court must not be manipulated for political purposes to handcuff governments taking risks to promote international peace and security and to save lives,'' Scheffer argued.

That fear is unwarranted, according to Court supporters. The draft treaty for the ICC contains ample checks, including judicial review, that would prevent any prosecutor from politically motivated or one-sided investigations, says Jelena Pejic, senior European programme coordinator for the Lawyers Committee for Human Rights.

In addition, ''the Court's jurisdiction will be limited to genocide, war crimes, and crimes against humanity - levels of atrocity unrelated to isolated and minor offenses committed during a peacekeeping or aid delivery mission,'' according to a recent report by Joe Stork, advocacy director for Human Rights Watch/Middle East. Nevertheless, Washington's concerns for months have ensured one of two outcomes for the ICC: Either its work will be subject to U.N. Security Council authorisation - a move that critics say would render it useless - or the United States will not participate in its inception this summer.

The latter option appears the more probable one for now. The ICC will likely gain its first support from European Union, Latin American and some progressive African and Asian states, according to Human Rights Watch associate counsel Richard Dicker.

The goal then may be to embarrass the United States into joining once enough nations have signed on. Stork, however, has warned that, as with the Ottawa Landmines Convention, agreed last year without U.S. acceptance, President Bill Clinton's administration once again may be ''sidelined by history.''

John Washburn, co-chair of the Washington Working Group on the International Criminal Court, insists the two cases are different. Although nations may choose to end landmine production and trade without Washington's help, the ICC will require resources - from political support to financing - which could be diminished significantly if the United States stays out, he argues.

The whole issue of financing remains unresolved. Some ICC supporters have suggested that only states which become party to the Court should have to pay for it. Others have said such an arrangement would dissuade countries from participating because, as Laurenti put it, they would ''save money by not joining the (ICC) regime.''

But were the Court to be funded from the U.N. regular budget, Congress likely would react angrily and again withhold U.S. back dues - 1.5 billion dollars and counting - owed to the United Nations. For now, observers here expect that the ICC will be created - with or without Security Council oversight - by July, and that the United States will not join initially. The Clinton administration may want to avoid ''another landmines controversy,'' as one official put it, but it appears to be on course for just such troubles within the next three months. (END/IPS/fah/aa/98)