On World Court, U.S. Focus
Shifts to Shielding Officials
by Elizabeth Becker
New York Times, September
The Bush administration is shifting its
emphasis in seeking exemptions for Americans from the jurisdiction
of the International Criminal Court, telling European allies that
a central reason is to protect the country's top leaders from
being indicted, arrested or hauled before the court on war crimes
charges, administration officials say.
In most of their public utterances, administration
officials have argued that they feared American soldiers might
be subject to politically motivated charges. But in private discussions
with allies, officials say, they are now stressing deep concerns
about the vulnerability of top civilian leaders to international
As an example of the fear, one senior
official pointed to the legal actions brought against former Secretary
of State Henry A. Kissinger in Chilean and American courts. The
actions were brought by people who accused Mr. Kissinger of aiding
in the 1973 coup in Chile and in the ensuing 17-year dictatorship
of Gen. Augusto Pinochet.
"The soldiers are like the capillaries;
the top public officials - President Bush, Secretary Rumsfeld,
Secretary Powell - they are at the heart of our concern,"
the senior official said. "Henry Kissinger, that's what they
really care about."
"They don't really care about the
Lieutenant Calleys of the future," added the official, referring
to Lt. William Calley, who was given a life sentence for the My
Lai massacre in Vietnam, but was then paroled.
Officially, the White House today repeated
what its spokesmen have said in public speeches and statements:
that their primary concern is that American soldiers, and not
public officials, would be brought before the court on politically
But they also said protecting top officials
has always been part of their opposition to the court, which was
established this year to prosecute those charged with genocide
and crimes against humanity.
"We do not make the distinction between
ranks here," said Sean McCormack, the spokesman for the National
Security Council. "Our concern is politicized prosecutions
of everyone - our servicemen and women and government officials."
State Department officials also acknowledged
the concern about protecting top American officials and pointed
to a speech in May by Mark Grossman, under secretary of state
for political affairs, who said the administration "must
insure that our soldiers and government officials are not exposed
to the prospect of politicized prosecution and investigations."
Using this new argument about the top
leaders has been persuasive, the senior official said, and the
government has won initial agreement from two key European allies
to sign an exemption saying all American soldiers, officials and
civilians are outside the reach of the court.
The administration is pressing hard to
persuade all nations that are party to the court to sign accords
to exempt Americans from its jurisdiction. The court is the first
permanent international body to be able to try people charged
with genocide and other crimes against humanity.
Human rights groups that monitor the court
debate say the administration has been reluctant to acknowledge
its concern over anyone but the common soldier.
"They weren't explicit about this,
but everyone knew they were nervous about Pinochet and Henry Kissinger,"
said Elisa Massimino, of the Lawyers Committee for Human Rights.
Mr. Bush reiterated the previous public
stance emphasizing soldiers in his opposition to the court during
a July speech at Fort Drum, N.Y. He told the soldiers of the 10th
Mountain Division that "the United States cooperates with
many other nations to keep the peace, but we will not submit American
troops to prosecutors and judges whose jurisdiction we do not
The new emphasis was previewed three years
ago in an article by John R. Bolton, who was then at the American
Enterprise Institute and is now under secretary of state for arms
control and international security and the administration's point
man for the court.
"The main concern should be for the
president, the cabinet officers who comprise the National Security
Council, and other civilian and military leaders responsible for
our defense and foreign policy," he wrote in the magazine
"They are the potential targets of
the politically unaccountable prosecutor created in Rome,"
he added, referring to the Rome treaty that created the court.
The European Union, which strongly supports
the court, is trying to find a compromise with the United States
that neither undermines the court nor disrupts the Atlantic alliance
at a time when the administration is also pressing Europe to support
its campaign against terrorism and any action against Iraq.
"We always figured that the Kissinger
precedent was behind this outrageous position, but it has taken
some time for the Americans to admit it," said a senior diplomat
whose country is a strong supporter of the court.
Human rights groups argue that the administration's
position is counterproductive. They say the international court,
which has power to try actions occurring on or after July 1, 2002,
has safeguards that would help protect American officials.
Under the current system of universal
jurisdiction, a foreign country can prosecute an American accused
of war crimes if he or she is caught in that country. But the
new international court gives the country of the accused, not
the country making the accusation, the right to hold the trial
itself as a first preference. Accordingly, an American could be
tried in an American court under the American system of justice.
"If an American is ever brought before
the I.C.C., Washington has the right to take that suspect, investigate
and try the case themselves," said Kenneth Roth, executive
director of Human Rights Watch. "That right doesn't exist
in foreign national courts today."
Mr. Roth said the greater fear was that
the American opposition would undermine the court. "Justice
isn't one set of rules for the world's only superpower and another
set for the rest of the countries," he said.
In his article three years ago, Mr. Bolton
wrote that "whether the I.C.C. survives and flourishes depends
in large measure on the United States."
His prescription was to "ignore it
in our official posture and attempt to isolate it through our
diplomacy, in order to prevent it from acquiring any further legitimacy
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