Jim Lobe

WASHINGTON, Dec 28 2000 (IPS) — With only three days left before the deadline for heads of state to sign the 1998 Rome Treaty for the International Criminal Court (ICC), human rights groups are hoping that outgoing President Bill Clinton will stand up to Pentagon pressure and finally put his pen to paper.

The lobbying at the White House reportedly is fast and furious, as the State Department, which has always supported joining the treaty in internal administration councils, is going head to head with the military brass who have insisted that the treaty permanently exempt US troops from the ICC’s jurisdiction as the price for Washington’s signature.

“It’s definitely in play,” said Richard Dicker, pointman on the treaty for New York-based Human Rights Watch (HRW). “They are clearly taking a close and careful look at this.”

The principal focus of the debate is Clinton’s national security adviser, Sandy Berger, who, while said to be personally sympathetic to the ICC supporters, has carefully guarded the president’s flanks from right-wing and military attack.

Political considerations weigh heavily. Clinton has always had a troubled relationship with the armed forces. Embarrassed by charges that he evaded the draft during the Vietnam War, he has consistently backed down in the face of their demands, such as Washington’s boycott of the treaty on banning anti-personnel mines and, most recently, its refusal to apologise for a massacre of civilian refugees in South Korea 50 years ago.

More recently, Democrats have been smarting from attacks by Republicans over alleged efforts by Vice President Al Gore’s campaign to challenge absentee ballots cast by soldiers and sailors overseas that did not satisfy technical requirements of Florida law.

So intense was the criticism, that the Army and Air Force military commands published warnings that it is a crime for active-duty personnel to express contempt for the nation’s political leaders.

Some officials worry that the perceived gap between Democrats and the military leadership could widen further if Clinton defies the Pentagon and signs the treaty.

On the other hand, public support for the ICC appears to have grown steadily in the waning days of Clinton’s presidency, if judged by the number and geographical spread of newspapers which have come out in its favour.

Those include not only the New York Times, which has long supported the ICC, but some major regional newspapers as well, including, most recently the St. Louis Post-Dispatch, the Milwaukee Journal Sentinel, and the San Francisco Chronicle.

In addition, a last-minute rush to sign the treaty by other countries – including some which opposed or abstained on the adoption of the treaty – could increase pressure on Clinton to take the leap. By the end of the weekend, Dicker believes the total number of signatories could rise from 123 as of Wednesday to as many as 135, 15 more than those which voted for it in July 1999.

Unconfirmed reports that both Iran and Israel have signalled their intention to sign this weekend could also be crucial, as right-wing opposition to the treaty in the Senate, centred on Foreign Relations Committee Chairman Jesse Helms, has long cited Israel’s opposition to the treaty as a major reason why Washington should oppose it, too.

“If Israel signs, it leaves the United States even more exposed,” said Dicker, adding that the Israeli army is repeatedly subject to charges of war crimes committed by its troops.

The treaty authorises the creation of a permanent independent judicial body to investigate and prosecute individuals alleged to have committed serious crimes under international law, including genocide, crimes against humanity, and war crimes.

The ICC, however, will be authorised to take up such cases only when the defendants’ national courts are shown to have been either unwilling or unable to meet their obligations to prosecute such cases themselves.

The United States helped create the most important international tribunal of this kind after World War II, when Nazi leaders were tried at Nuremberg. More recently, the Clinton administration has supported other limited international criminal tribunals for Yugoslavia, Rwanda, Sierra Leone, and Iraq.

But, under Pentagon pressure, Clinton has not supported a permanent ICC. The price of US backing, according to senior administration officials, is a formal guarantee that US military officials or civilians abroad will not be subject to the Court’s jurisdiction.

The Pentagon is concerned that, given the global reach of US military power, other countries may be tempted to make politically motivated charges against US soldiers. It has been backed by right-wing lawmakers like Helms who say that the ICC’s mere creation and assertion of universal jurisdiction violate US sovereignty.

He and the Republican leadership have gone so far as to draft legislation that would cut off aid and impose other sanctions against countries which ratify the treaty.

Undeterred, 25 countries, including staunch US ally Germany, have ratified the treaty which will take effect once 60 countries ratify it – a goal which is likely to be achieved by the end of 2002, according to its supporters.

Other treaty supporters – including Washington’s NATO allies – have tried to accommodate US concerns by adding provisions to reduce the possibility of “runaway prosecutors” filing and investigating politically motivated claims against US or other forces. But these efforts were rejected at the last negotiating session at the UN headquarters in New York earlier this month.

By signing the treaty before the Dec. 31 deadline, Clinton would not commit the United States to ratify it, which can only be done by a majority of the Senate.

In fact, given the strong opposition to the treaty on the part of Helms and the Republican leadership – as well as President-elect George W. Bush’s own statements against it during the election campaign – chances of Senate ratification are considered nil over the next four years.

But, by signing the treaty, Clinton would ensure that Washington could still take part in negotiations over its implementation.

Treaty supporters also argue that Clinton’s signature would be an important symbolic gesture that, in the words of the New York Times, would “encourage eventual ratification and maintain Washington’s global leadership in human rights and efforts to bring international criminals to justice”.

“If President Clinton fails to sign the treaty, he will weaken our credibility and moral standing in the world,” according to a column by Robert S. McNamara, Pentagon chief during the Vietnam War.

“We will look like a bully who wants to be above the law,” wrote McNamara, who authored the column with Benjamin Ferencz, a prosecutor at the Nuremberg trials after World War Two.