The Court the US Doesn’t Want


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…

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