The Court the US Doesn’t Want

1.

As cheering broke out in the UN conference room on the Viale Aventino in Rome this past July, David Scheffer, the US ambassador-at-large for war crimes issues, was not pleased. While delegates from around the world celebrated a historic agreement to establish a new International Criminal Court (ICC), he sat stone-faced, arms folded. After three years of conferences and a final, five-week negotiating session in Rome, the participating nations voted by an overwhelming 120 to 7 to establish a new institution for bringing the world’s worst human rights criminals to justice. In favor of the court were most of America’s closest allies, including Britain, Canada, and Germany. But the United States was isolated in opposition, along with such dictatorships and enemies of human rights as Iran, Iraq, China, Libya, Algeria, and Sudan. It was an embarrassing low point for a government that portrays itself as a champion of human rights.

This didn’t have to happen. President Clinton had repeatedly endorsed the court. He did so just four months earlier in the Rwandan capital of Kigali while he listened to survivors of the Hutu genocide pleading for justice. But the President acceded to pressure from the Pentagon and its congressional allies to try to preclude any possibility of the court’s prosecuting an American. Most other governments rejected this demand as inconsistent with their vision of equal justice for all.

Last year, the Clinton administration faced a similarly embarrassing conclusion to negotiations in Ottawa to ban antipersonnel landmines, which indiscriminately kill and maim an estimated 26,000 civilians each year. Under pressure from the Pentagon to exempt the United States, the administration rejected a treaty that 122 countries enthusiastically supported, leaving open the possibility that it might join the treaty by the year 2006. The administration is also standing in the way of a worldwide campaign to end the use of children under eighteen as soldiers—a major source of suffering in times of war—because the Pentagon wants to continue to recruit seventeen-year-olds.

In each case, President Clinton’s reluctance to defy the Pentagon and such legislators as Jesse Helms has put the United States out of step with most of the rest of the world. Most governments will not agree to exempt Americans from the reach of international human rights law. Rather than defer to the United States at an especially parochial moment in its history, these governments are choosing instead to establish human rights standards and institutions on their own, with the hope that someday an American president will have the vision and political courage to join them.

By dealing with those who commit war crimes or serious abuses of human rights and usually get away with it, the ICC could be the most significant human rights breakthrough since the Universal Declaration of Human Rights was adopted fifty years ago. As Aryeh Neier writes in his detailed and powerful new book War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice,¹ those responsible for terrible atrocities frequently strike a bargain that allows them to escape punishment for their crimes. Tyrants often insist on amnesty from prosecution in their national courts as a condition for relinquishing power: the transition from military to civilian rule in Chile in 1990 is just one example.

Trying to respond to this form of blackmail, the human rights movement has sought to build on the precedents set at the Nuremberg and Tokyo tribunals. In recent years nongovernmental organizations such as Human Rights Watch and Amnesty International have worked closely with sympathetic governments to establish new legal approaches ranging from the truth commissions of Latin America and South Africa to the international criminal tribunals for Rwanda and the former Yugoslavia. The ICC promises to be the most far-ranging and powerful institution yet.

As conceived in Rome, the new court will prosecute those responsible for future genocide, crimes against humanity, and war crimes.² But unlike the temporary tribunals set up by the UN Security Council to prosecute those responsible for the atrocities in Rwanda and the former Yugoslavia, the ICC will be permanent, with potentially worldwide jurisdiction. And unlike the International Court of Justice (ICJ)—the so-called World Court—which resolves disputes between governments, the ICC will prosecute individuals. Its judges and prosecutor will be based in The Hague, already the seat of the ICJ and the Yugoslav tribunal.

As soon as sixty nations ratify the ICC treaty and establish the court, those who commit the worst atrocities will risk not only stigmatization, public pressure, and economic sanctions, as they do today, but also the threat of trial and punishment. Unlike sanctions, whose impact is often felt most heavily by the general population, or military intervention, whose burdens fall mainly on the rank-and-file soldiers on the front line, the threat of justice can be directed precisely at the political leaders and military commanders who are responsible for mass slaughter.

A coalition of sixty governments led the campaign for a strong and independent court. They included most of the established democracies—all of the European Union except France as well as Canada, Australia, and New Zealand—and many newer or emerging democracies, among them Argentina, South Korea, Senegal, South Africa, Chile, and Malawi. Having recently made the transition from authoritarian to democratic rule, many of these nations appreciated the importance of an international institution of justice that, by remaining beyond the coercive reach of local tyrants, could serve as an insurance policy against future abuse.

This coalition dubbed itself the “like-minded group”—a neutral term highlighting its ability to cut across the regional blocs that tend to dominate UN deliberations. Like the coalition behind the landmines ban, the like-minded countries were notable for the absence of some of the major military powers, including the US and Russia. Instead, they depended on the considerable influence of what Canadian Foreign Minister Lloyd Axworthy calls “soft power”: a strong moral message, reinforced by their close partnership with nongovernmental organizations capable of mobilizing popular opinion.

The Clinton administration’s opposition to the ICC stemmed in part from its fear, a plausible one, that hostile states like Cuba, Libya, or Iraq might try to convince the court to launch a frivolous or politically motivated prosecution of US soldiers or commanding officers. The Rome delegates adopted several safeguards against this possibility, most importantly the so-called principle of complementarity. This gives the ICC jurisdiction over a case only if national authorities are “unwilling or unable” to carry out a genuine investigation and, if appropriate, prosecution. The complementarity principle also reflects the widely shared view that systems of national justice should remain the front-line defense against serious human rights abuse, with the ICC serving only as a backstop. (By contrast, the Yugoslav and Rwandan tribunals are empowered to supersede local prosecutorial authorities at their discretion and have done so repeatedly.)

According to the principle of complementarity, if an American soldier were to commit a serious war crime—say, by deliberately massacring civilians—he could be brought before the ICC only if the US government failed to pursue his case. Indeed, even a national decision not to prosecute must be respected so long as it is not a bad-faith effort to shield a criminal from justice. Because of the strength of the US judicial system, an ICC prosecutor would have a hard time dismissing a US investigation or prosecution as a sham. And, under the treaty, any effort to override a nation’s decision not to prosecute would be subject to challenge before one panel of international judges and appeal before another.

Much would still depend on the character and professionalism of the ICC prosecutor and judges. The rec-ord of the International Criminal Tribunals for Rwanda and the former Yugoslavia suggests that faith in them would be well placed. The first two chief prosecutors in these tribunals, Justice Richard Goldstone of South Africa and Judge Louise Arbour of Canada, are highly respected jurists who have done their work with exceptional skill and integrity. The tribunals’ judges, currently led by Judge Gabrielle Kirk McDonald, a federal judge from Texas, have served with similar distinction. All have insisted on rigorous proof of crimes and the highest standards of due process.

There is every reason to believe that the ICC will be run by jurists of comparable stature. The prosecutor and eighteen judges will be chosen by a majority vote of the governments that accept the court’s jurisdiction—a self-selecting group that is likely to exclude most rogue states, whose greatest concern will be avoiding their own prosecution.

But the Pentagon and its congressional allies were not satisfied with the principle of complementarity as protection against unjustified prosecutions. At their insistence, the Clinton administration sought to rule out any possibility of even a legitimate prosecution of an American. This proved too much for the Rome delegates.

2.

Efforts by the US to exempt its nationals from the ICC’s jurisdiction contributed to four points in contention during the Rome conference. The delegates gave considerable ground on several of them but they refused to dismiss entirely the possibility of an American being brought before the court. The resulting concessions weakened the court significantly; still the Clinton administration ended up denouncing it.

The first controversy concerned whether and, if so, how the UN Security Council should be permitted to halt an ICC prosecution. The US proposed that before the ICC could even begin an investigation, the Security Council would have to expressly authorize it. Because the United States, as a permanent Council member, could single-handedly block Council approval by exercising its veto, this proposal would have allowed Washington to prevent any investigation, including of its own soldiers and those of its allies. The other four permanent Council members—Britain, France, China, and Russia—would necessarily have had the same veto power. As a result, only criminals from a handful of pariah states would have been likely to face prosecution. The Security Council’s historic inability to establish even temporary tribunals for such mass murderers as Saddam Hussein or Pol Pot suggests that many obvious candidates for prosecution would escape justice.

Singapore offered a compromise to the veto problem which ultimately prevailed. It granted the Security Council the power to halt an ICCprosecution for a one-year period, which could be renewed. But the Security Council would act in its usual manner—by the vote of nine of its fifteen members and the acquiescence of all five permanent members. Therefore no single permanent Council member could use its veto to prevent a prosecution from being initiated.

A second controversy involved how a prosecution could be set in motion—and hence also the power of the ICC prosecutor. Most governments at the Rome conference agreed that a prosecution could begin after a case is referred to the new court in The Hague, either by the Security Council or by a government that has ratified the ICC treaty. But, as has been noted, the Security Council has often been unwilling to act in the face of horrendous atrocities. Individual governments, for their part, are notoriously reluctant to formally accuse one another of serious human rights abuses; even the complaint mechanisms of existing human rights treaties, which threaten far less severe consequences than criminal prosecution, are rarely used. So the sixty “like-minded” governments also wanted to empower the ICC prosecutor to initiate prosecutions on his or her own.

Again, Clinton officials strongly objected. At first, they were joined by the British and French but both were satisfied by an Argentine-German proposal, ultimately adopted, that all decisions to launch an inquiry or prosecution be subject to review by a special three-judge panel. That addressed concerns that the prosecutor might pursue frivolous cases.

But the Clinton administration still feared that a prosecutor acting on his or her own would be more likely to investigate Americans. The US government could use its veto to prevent the Security Council from proposing the investigation of an American, and few governments would risk the political consequences of filing a complaint against a US soldier or commander. But Washington was worried that the ICC prosecutor, even when his work was subject to judicial review, might not feel so inhibited. In the end, the Rome delegates overruled the administration’s objections.

The third major controversy involved what restrictions should be placed on the ICC’s definition of war crimes. Because genocide and crimes against humanity involve by their very nature widespread or systematic atrocities, the United States today is unlikely to commit them. But the United States might commit a war crime—if, for example, a soldier killed a prisoner, a pilot deliberately bombed civilians, or an artilleryman fired indiscriminately on a civilian neighborhood.

In most such cases, the Pentagon could fully expect to avoid ICC jurisdiction by prosecuting members of its own forces, since attacking noncombatants is clearly contrary to US military doctrine. But the Pentagon worried about actions whose criminal nature was less clear. Of special concern was the so-called rule of proportionality under international law, which prohibits a military attack causing an incidental loss of civilian life that is “excessive” compared to the military advantage gained. This less precise rule could implicate activity that US military commanders consider lawful but the ICC might not. For example, the Gulf War bombing of Iraq’s electrical grid was claimed to have killed a disproportionate number of civilians, including the thousands said to have died because of the resulting loss of refrigeration, water purification, and other necessities of modern life. What if the ICC had been in existence and had found such claims well founded? What about the wholesale burning of El Chorillo neighborhood in Panama City and the death of some three hundred civilians during the US invasion of Panama?

To avoid prosecution in such borderline situations, US negotiators successfully redefined the proportionality rule to prohibit attacks that injure civilians only when such injury is “clearly excessive” in relation to the military advantage. The effect of this and other concessions to the US—including a broader definition of military advantage—was to tip the balance considerably against the ICC’s finding a violation of the rule of proportionality.

The United States, joined by France, also proposed that governments be allowed to join the ICC while specifying that their citizens would be exempted from war crimes prosecutions. Since many governments could be expected to exercise this option—seeming to accept the court while essentially sidestepping its jurisdiction—the Rome delegates rejected it. But as a compromise, the treaty allows governments to exempt their citizens from the court’s war crimes jurisdiction for a period of seven years. That would allow a hesitant government to reassure itself about the court’s treatment of war crimes without permanently denying the court jurisdiction over its citizens. The same compromise ingeniously created an incentive to join the court, since the seven-year exemption is available only to governments that ratify the ICC treaty. France accepted this compromise. The United States rejected it.

3.

The most divisive issue delegates faced was deciding how—once the ICCtreaty was ratified by sixty countries—the court would get jurisdiction over a case that was referred by an individual government or initiated by the prosecutor. (This issue does not arise when the Security Council refers a matter for prosecution, since the Council has the power to impose jurisdiction.)

Germany proposed that the court should have jurisdiction everywhere without regard to whether any additional government has ratified its treaty. The German delegation noted that genocide, crimes against humanity, and war crimes are all crimes of universal jurisdiction, meaning that those who commit them can be tried in any court, even if the court has no connection to the crime. For example, in April it appeared briefly that Pol Pot might be captured and available for trial. Because China had prevented the Security Council from establishing an international tribunal for this purpose, the Clinton administration sought out countries, such as Canada or Belgium, that might try him in their national courts for crimes against humanity under the doctrine of universal jurisdiction. The same doctrine could support Britain’s October 16 arrest, at the request of Spain, of former Chilean President Augusto Pinochet for crimes against humanity committed during his seventeen-year rule. Germany argued that governments should be able to delegate to the ICC the powers that universal jurisdiction confers on their own courts.

South Korea put forward a more limited proposal which gained broad support. It would have granted the ICC jurisdiction when any one of four governments concerned with a crime had ratified the ICC treaty or accepted the court’s jurisdiction over the crime. These were: (1) the government of the suspect’s nationality; (2) the government of the victims’ nationality; (3) the government on whose territory the crime took place; or (4) the government that gained custody of the suspect. In any given case, some and perhaps all of these governments would be the same, but each separate category increases the possibility that the court could pursue a particular suspect.

Speaking for the Clinton administration, Ambassador Scheffer vehemently insisted that the court should be empowered to act only if the government of the suspect’s nationality had accepted its jurisdiction. The administration’s proposal would have allowed the US to prevent ICC prosecution of Americans simply by withholding ratification. And because most abusive governments also would probably not ratify the treaty, the ICC would have been unable to pursue many of the most important suspects (unless the Security Council, with its poor record, authorized it to do so).

Clinton administration officials were not mollified by the fact that, under the doctrine of universal jurisdiction, American soldiers are already vulnerable to prosecution in foreign courts. The US government has many ways of dissuading governments from attempting to try an American—from diplomatic and economic pressure to the use of military force. But the administration fears such dissuasion would be less effective against the ICC. After all, the Pentagon could hardly threaten to bomb The Hague.

The Americans went to great lengths to quash the South Korean proposal. Defense Secretary William Cohen met with his German counterpart to discuss it. We don’t know what he said, but according to a list of his talking points that was leaked in Rome, he was prepared to threaten to reduce US troops in Europe. David Scheffer, as head of the US delegation in Rome, warned that the United States would “actively oppose” a court based on the South Korean conception of jurisdiction. Facing these extraordinary threats, the Rome delegates gave in, but only partially. They got rid of two of Korea’s proposed conditions for ICC jurisdiction: that the treaty would have to be ratified by the state of the victim’s nationality or it would have to be ratified by the state that gained custody of the suspect.

This concession was damaging. Because a state could not give the ICCjurisdiction just by arresting a suspect, a leader who commits atrocities against his own country’s citizens, such as a future Pol Pot or Idi Amin, could travel widely without being brought before the ICC—so long as his own government had not ratified the treaty (and assuming the Security Council does not act). One can imagine a genocidal killer free to shop in Milan, seek medical treatment in London, or vacation in the south of France, while the ICC stood by powerlessly. And if the victims’ nationality cannot be used as grounds for ICC jurisdiction, then the ICC could not take action against the leader of a nonratifying government that slaughters refugees from a ratifying state who seek shelter on its territory (again, assuming the Security Council fails to act). At best, it would be left to national authorities to overcome the substantial political obstacles to pursuing such prosecutions in their own courts.

But the Rome delegates did not accept the Clinton administration’s demands entirely. They retained two grounds for the ICC’s jurisdiction: not only that the government of the suspect’s nationality had ratified the treaty (the only ground acceptable to the US) but also that the government on whose territory the crime took place had ratified it. In the case of a tyrant who commits crimes at home, these two governments would be the same. But the territorial “hook” could catch, for example, Saddam Hussein for committing war crimes during a new invasion of Kuwait. Even though Iraq would probably not ratify the ICC treaty, Kuwait might well do so as added protection for its population. The United States, however, feared that the territorial hook might catch American troops, or their commanders, for alleged crimes committed while they were abroad. If the country where US troops are present has ratified the treaty, the ICC could pursue a case against them even though the United States had not joined the court.

In weakening the Korean proposal, the Rome delegates apparently felt the need to make concessions to Washington in the naive hope that the Clinton administration would at least tolerate the court. Instead, they got the worst of both worlds: the court has been considerably weakened and the US government is still determined to destroy a historically important new institution.

4.

The administration’s opposition to the court is shortsighted. Its preoccupation with avoiding the remote possibility of having an American brought to trial has led it to overlook the ICC’s potential to save the lives not only of the potential victims of mass atrocities but also of American soldiers. US troops today are most frequently sent abroad for humanitarian purposes—to alleviate suffering caused by tyrannical governments or brutal forces in places like Somalia, Haiti, and Bosnia. An effective ICC could help avoid these perilous missions by deterring the atrocities in the first place. Some US officials express doubt over the ICC’s capacity to deter crimes. But even if the ICC can only occasionally prevent atrocities that US troops otherwise would have to stop, the benefits for US troops, not to mention the potential victims, would be substantial.

At the same time, the cost to the United States of an effective ICC is small. While the Rome delegates did not entirely rule out the possibility of an American being prosecuted, they provided substantial protection against unjustified prosecutions. Since it is not US policy to commit genocide, crimes against humanity, or war crimes, that should have been enough.

The administration’s hostility to the ICC also threatens to undermine its opposition to terrorism and drug-trafficking. The US government claims the right to try foreign terrorists and drug traffickers without the consent of their governments, as in the case of its efforts to try Libyans suspected of causing the explosion of Pan Am 103 over Lockerbie, Scotland. In another case, in spite of the fierce protest of the Mexican government, the US Supreme Court upheld American jurisdiction over a suspect in a drug-related murder whom US agents had kidnapped from Mexico. Such positions contradict the administration’s insistence that ICC prosecutions be limited to suspects whose governments have consented to its jurisdiction.

Can the ICC survive without US participation? The Clinton administration is betting that it cannot. Already Jesse Helms, having declared the ICC treaty “dead on arrival” in the Senate, has vowed to sponsor legislation forbidding the US government to fund the court or do anything to give it legitimacy. The State Department said publicly it might put pressure on governments not to join the court; and it is considering renegotiating the bilateral treaties that govern the stationing of US forces overseas in order to protect them from the ICC.

The Clinton administration is now mounting a public relations offensive to defend its position in Rome. It argues that a weaker court would have been more effective because it would have had the backing of the United States. It also contends that, small as the risk is of an American being brought before the court, the ICC will undermine humanitarian goals by making the United States reluctant to deploy troops in times of need. Certainly, US assistance is important in the fight against serious human rights crimes. The United States has been an important financial and political backer of the tribunals for Rwanda and the former Yugoslavia. US political and military involvement in Bosnia helped to stop the killing and bring about the surrender or arrest of a number of war crime suspects. There is no reason why this assistance should stop, or why it shouldn’t be extended at times of similar need in the future. But if Washington allows its exaggerated fears of the ICC to restrict its humanitarian activities, it would not be so clear that the United States is as “indispensable” as Madeleine Albright likes to claim. The Clinton administration’s preoccupation with avoiding casualties among US troops has made it a reluctant, and thus less effective, force when it comes to stopping genocide or arresting war crime suspects. The US blocked UN efforts to stop the genocide in Rwanda, and its interventions in Bosnia occurred only after years of killing. US troops in Bosnia still refuse to arrest the two most important war crime suspects, Radovan Karadzic and Ratko Mladic. US forces contribute very little to the peacekeeping missions carried out by lightly armed UN forces. Apart from 300 US troops stationed in Macedonia, peacekeeping work is done almost entirely by governments such as Canada, France, and Britain that plan to join the ICC. Moreover, the governments likely to ratify the ICC treaty over the next two or three years include the entire European Union, Canada, South Korea, Australia, New Zealand, possibly Japan, and a broad range of governments from the developing world. Taken together, they have the political stature, economic resources, and military strength to support the court. These governments have grown accustomed to depending on US leadership—a tendency that is only exacerbated by the Europeans’ preference for consensus over bold action. But if it becomes clear that Washington won’t come to the rescue, they might feel more inclined to act. There are several recent examples of humanitarian action without the United States. Britain’s new Labour government has taken the lead in arresting indicted war crime suspects in Bosnia. Responding to Spain’s request, it also arrested Pinochet. Canada has been at the forefront of efforts to ban the use of children as soldiers and of antipersonnel landmines. African states have arrested most of those publicly indicted by the international tribunal for Rwanda. Far more action is clearly needed, and US help would certainly be useful, but it does not look indispensable. The strength of the so-called “like-minded” bloc of countries in Rome is a promising sign.

More worrying to the Clinton administration should be the growing resentment of the US government’s unwillingness to subject itself to international human rights law. The cheers heard in the Rome conference hall partly reflected indignation at the US government’s arrogance in dealing with human rights, particularly its belief that “universal” international human rights law applies only to other governments, not to itself. The administration cannot afford to be indifferent to this growing resentment. Anger over US highhandedness on human rights can only make American allies less willing to compromise on other matters of importance to the United States.

Jesse Helms’s promise that the ICC treaty was “dead on arrival” means that the US will not ratify the ICC for the time being. But it is entirely within President Clinton’s power to overrule Pentagon objections and sign the treaty. His administration should stop, in any case, denouncing a new institution that may save many lives. That is the least he can do to put America back in the camp of the friends, rather than the enemies, of human rights.

—October 21, 1998