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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.

  1. 1

    Times Books, 1998.

  2. 2

    Some of the court’s US critics note that the court might also address the crime of aggression. But that will occur only if seven eighths of the governments that join the court can agree on a definition at a conference to be held seven years after the court is established. The only conceivable definition that could attract such broad support is one that would leave it to the Security Council to declare when aggression has occurred, meaning that the United States and the other permanent members of the Council could use their veto to prevent any such prosecution with which they disagreed.

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