On World Court, U.S. Focus Shifts to Shielding Officials

by Elizabeth Becker

New York Times, September 6, 2002

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 legal action.

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 motivated charges.

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 accept."

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 National Interest.

"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 or resources."

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