Pentagon Wants Veto Power Over War Crimes Court

by Farhan Haq

In March, Pentagon officials kicked off an unusually public campaign against the proposed ICC when it called in more than 100 military attaches from around the world to warn them of the potential threats the Court could pose to their armed forces.

"It came as a real bolt from the blue," Richard Dicker, associate counsel for Human Rights Watch, said of the March briefing. Immediately, dozens of military chiefs -- many from countries with records of military involvement in human rights abuses -- made "frantic calls" to diplomats involved in setting up the ICC to express their own concerns about the Court, he added.

Since March, Dicker contended, there have been "numerous times when U.S. military officers have taken the opportunity to weigh in with their counterparts."

In their meetings, the U.S. defense officials declared their opposition to what one Pentagon memorandum called "overly broad and vague definitions of war crimes" and prosecutors with "unbridled discretion to start investigations."

The upshot may be to encourage military officials in dozens of nations to become more directly involved in negotiations on the Court. In fact, as one Defense memorandum puts it, Pentagon officials "strongly recommend that (other nations' military attaches) take an active interest in the negotiations regarding an International Criminal Court."

"Frankly, that's like asking the foxes to help get involved in designing the chicken coop," Dicker argued.

Pentagon officials are adamant that they have not been doing any lobbying. "There was no arm-twisting -- it was awareness- raising," said Frederick Smith, principal deputy assistant secretary of defense, of the March briefings.

Some of the Pentagon's efforts may have backfired, however, precisely because -- as Cherif Bassiouni, deputy chair of the U.N. committee which prepared the draft statute for the ICC, put it -- "they went after a fly with a shotgun."

The scope of the campaign has not prevented more than 50 nations, from Western Europe to Southern Africa and Latin America, from supporting a relatively strong Court and independent prosecutor.

More importantly, the campaign has sometimes made its own errors, noted William Pace, convenor of the Coalition for an International Criminal Court, a grouping of non-governmental organizations supporting the ICC's creation.

Pentagon briefs have made warnings of ICC powers that do not reflect the judicial review to which the Court and its prosecutor will be subject, or the role national courts would play before any ICC investigation starts, Pace argued.

The other flaw in the campaign, as one U.S. activist said on condition of anonymity, is that it makes it seem as if the Pentagon's policy is at odds with that of Clinton and the U.S. State Department. "I'm sure many voters in the United States would be concerned at the idea that, in many areas, the Pentagon has its own foreign policy," he said.

At any rate, many analysts of the U.S. stance on the Court believe the Pentagon's fears that the ICC could prosecute U.S. military officers around the world have swayed Washington away from supporting a strong Court.

Ambassador David Scheffer, the lead U.S. negotiator on the ICC, has repeatedly cited the need to maintain a strong military and peacekeeping presence around the world as a reason to insist, for example, on Security Council oversight -- and therefore U.S. veto power -- over the ICC.

"There is a very strong desire on the part of the Defense Department to ensure that under no circumstance will American military personnel be subject to the authority of the Court," said Morton Halperin, a former Pentagon official who is now vice president of the non-governmental Twentieth Century Fund. "Those positions are inconsistent with an effective Court."

They are also unnecessary, Halperin argued. As it is currently planned under the draft statute, he said, the ICC will have considerable safeguards that would prevent any soldiers from countries with functioning judiciaries -- and therefore from the United States -- from being brought before the Court.

However, some U.N. officials are concerned that U.S. insistence that countries with functioning judiciaries handle any such trials -- on grounds of "complementarity" -- could become unreasonably broadened, so that some nations which have no intention of trying war crimes suspects on their armed forces would also be allowed to prevent any ICC investigation.

Whether or not military officials worldwide push for a weaker Court, one result of the Pentagon campaign is already clear: there will be many more military officials arriving for the Rome meetings than had been previously expected, Dicker argued.

Many of them are coming from nations which have only recently pushed for transitions from military rule to democracy. "It is a profoundly disturbing development," Dicker said.