April 1998

Writer: Joe Stork, Human Rights Watch

Editors: Martha Honey (IPS) and Tom Barry (IRC)

Key Points

* A UN conference to finalize an International Criminal Court treaty

convenes in June.

* Such a court needs independent authority to investigate and prosecute war

crimes and genocide without political constraint.

* The U.S., France, and China want to make sure they can veto any

initiative they find inconvenient or threatening.

On June 15, 1998, diplomats from around the world will assemble in Rome to

finalize a treaty that will establish an International Criminal Court

(ICC). A key issue is the role of the U.S. government in these negotiations

and its apparent effort to ensure that actions of U.S. citizens,

particularly U.S. military personnel, will always remain beyond the

conceivable reach of such a court.

Suggestions for such a court-which could operate when national judicial

systems collapse or when no national court prosecutes persons suspected of

war crimes or genocide-emerged after World War II but were shelved during

the cold war. Responding to a 1989 initiative by the government of Trinidad

and Tobago, the United Nations General Assembly commissioned a draft

statute for an ICC. Interest in the project grew in the aftermath of the

slaughter of hundreds of thousands of people in Bosnia and Rwanda.

Delegates from some 80 countries began Preparatory Committee (Prep Com)

meetings in the spring of 1996 to negotiate and consolidate a final draft.

The impunity enjoyed by the architects and perpetrators of some of the

worst massacres and atrocities of a bloody century underlies the drive to

establish such a court. Complementing the Inter-national Court of Justice

in The Hague, which hears disputes between governments, the ICC would

investigate and try individuals accused of genocide, war crimes, and crimes

against humanity. An ICC, if it had existed, could have been the venue for

the work of the special tribunals now dealing with the atrocities committed

in Rwanda and the former Yugoslavia. Last year, when the Khmer Rouge

appeared ready to hand over Pol Pot for prosecution, Cambodia was in no

position to adjudicate and there was no existing international forum. An

ICC could have fulfilled this role. A standing International Criminal

Court, had it existed in 1988, would also have been the place to draw up an

indictment against Iraqi President Saddam Hussein and his top cohorts for

their genocidal campaign against that country's Kurds. Such a court should

be crucial in addressing war crimes against women, including rape and

sexual slavery, which are often ignored in national courts and have been

minimally pursued by existing ad hoc tribunals.

The last of the six Prep Com sessions ended April 3, 1998, but still at

issue is what kind of court will emerge. Will the ICC have the authority

and independence to deliver justice, or will it be subject to veto control

by the Security Council and by the states implicated in any investigation,

as U.S. negotiators suggest? A bloc of like-minded states-led by Canada and

including Germany, South Africa, and Argentina-have worked closely with

nongovernmental organizations to spearhead the effort for an effective and

independent court. Supporters of an independent court have thwarted efforts

by China, France, the U.S., and others to delay indefinitely the creation

of an ICC, and they have insisted on treaty language extending automatic

jurisdiction of the court to cover war crimes and crimes against humanity

as well as genocide. Among the like-minded group are states that have

undergone transitions from authoritarian rule and understand how impunity

undermines political reform and the rule of law. Some of the larger global

powers, however, advocate positions that would subordinate the court to the

Security Council (where they have a veto) or would require that the state

where the indicted citizen resides -Iraq, in the case of Saddam Hussein,

for instance-consent to the ICC's jurisdiction on a case-by-case basis. At

best, this would result in a permanent ad hoc tribunal, subject to

political discretion rather than the imperatives of justice.

Some of the organizations and governments involved in the ICC campaign have

cited the recently concluded international treaty banning the use of

antipersonnel landmines to argue that the priority should be an effective

and independent court, even if the U.S. declines to sign the treaty. The

Clinton administration is eager not to be sidelined once again, as it was

in the Ottawa landmines negotiations. Yet Washington contends that the two

treaties are not comparable and that there could be no meaningful court

without the participation and financial support of the United States. These

are the stakes going into the final conference in June.

President Clinton, after initial hesitations, has endorsed the concept of

an ICC, and U.S. experts have been constructive in many aspects of the

negotiations, especially in drafting fair trial procedures and detailing

the rights of defendants. But the U.S. has also put forward positions and

reservations that, if they prevail, would give the U.S. (and other states)

effective veto power over the cases the court investigates and prosecutes.

Problems With Current U.S. Policy

Key Problems

* The Pentagon insists that the U.S. only agree to a treaty that preserves

the U.S. ability to reject ICC jurisdiction over cases in which U.S.

military personnel might be prosecuted.

* This sort of treaty would appeal to the very states most likely to ignore

their own war crimes, genocide, and crimes against humanity.

* If the final treaty adopts some of Washington's current positions, the

result will be a permanent ad hoc tribunal, subject to political discretion

rather than the imperatives of justice.

The U.S. position in ICC negotiations would compromise the court's

independence and credibility by politicizing the most crucial

decisions-namely, determining which cases the ICC will be able to consider.

The issue of the court's independence and credibility revolves around three

areas of dispute. The first area concerns the role of the Security Council.

The current draft denies the court jurisdiction in situations that the

Security Council is "dealing with," unless the council expressly authorizes

the court's involvement. Since the court's areas of jurisdiction-war

crimes, genocide, and crimes against humanity-will necessarily involve it

in situations likely to be under active Security Council scrutiny, this

would give an effective veto to any of the permanent members. The

possibility of an unfettered ICC prosecuting a political leader or military

commander-one of the leaders responsible for the carnage in Bosnia, for

instance-could seriously complicate negotiations to restore peace. Such

concerns, though, could be addressed by less drastic means than vetoes.

Singapore has proposed that the Security Council could initiate action to

delay or forestall the ICC's involvement in such an instance. Under the

current draft, one member of the council's permanent five could

singlehandedly stop the court from moving forward on a case by vetoing

approval. Under the Singapore proposal, a member of the Perm Five could

stop the court from pursuing a case only by obtaining both the agreement of

the other four permanent members and a majority vote of the entire Security

Council.

Britain has endorsed the Singapore compromise, and there are indications

that the U.S., finding itself relatively isolated on this question, will

eventually support it as well. In dropping such hints, though, Washington

has also signaled that it intends to secure U.S. veto power by other

means-namely, by insisting on language that would require the ICC, before

it could initiate an investigation, to secure the consent of any state with

an "interest" in the case. According to some proposals, "interested states"

could include the state with custody of the accused, the state where the

alleged crime took place, and the state of the accused's nationality. One

U.S. official involved in the negotiations privately characterized the

consent issue as "our nuclear bomb" in the negotiations, referring to the

intimidating and potentially destructive impact of this stance.

This issue leads to the second major area of contention: what authority

will the ICC have to determine the cases it will investigate and prosecute?

One aspect of authority involves defining the court's inherent

jurisdiction. There is considerable support, even from the U.S., for

enlarging the present language of the draft statute to give the court

inherent jurisdiction over not only genocide but also war crimes and crimes

against humanity, such as targeting noncombatants, mass rape, and torture.

Because these are crimes considered to be covered by customary

international law, all states would be subject to ICC jurisdiction over

such matters whether or not they have signed a particular treaty or

convention. But the U.S. is also threatening to insist that even here

interested states would have to give express consent to the ICC to

prosecute individual cases.A key aspect of the "state consent" question is

complementarity-in other words, the relationship of the ICC to national

criminal justice systems. The purpose of the ICC is not to replace or

substitute for those systems but rather to operate where such systems do

not exist or are ineffective. It is to make sure that those responsible for

the most heinous crimes are investigated and prosecuted when political

turmoil renders a national justice system ineffective or when the

government itself is responsible for gross abuses. An effective ICC would

spur governments to ensure that their judicial systems function effectively

as the first line of accountability. By encouraging national governments to

address crimes of sexual violence, mainly against women, the ICC could

potentially make a huge difference, if the statute is drafted to specify

the court's jurisdiction over such crimes.

The present draft statute language, however, fails to clarify where

responsibility lies for determining the inability or unwillingness of a

state to conduct a genuine investigation or prosecution. If the final

statute's wording is weak, a state could decide unilaterally not to

cooperate with the ICC by deeming its own actions sufficient. States should

be able to challenge the ICC's jurisdiction in a given case, but it is

important that the court have the final decision. The U.S. says that it is

reserving its position on the issue of state consent until the relationship

between the ICC and the Security Council is clarified. This suggests that

Washington intends to emerge from the negotiations with its veto power

preserved in one way or another. Of course, a high consent threshold would

also have the support of numerous other states anxious to guarantee the

same prerogative of immunity for themselves.

A third and related area of dispute concerns the role of the ICC

prosecutor. The present language, endorsed by the U.S. in no uncertain

terms, restricts the prosecutor to initiating an investigation only in

situations referred by the Security Council or in response to a complaint

by a state that has ratified the treaty. Such language would reduce the ICC

to the role of an executor of decisions by the Security Council or by

governments that have agreed to its jurisdiction-decisions that invariably

embody political considerations that may well outweigh the demands of

justice. Prosecutorial autonomy will clearly be important, also, if the

court is to adequately address gender-based war crimes. It is important to

expand the ICC's trigger mechanisms to allow the prosecutor to initiate an

investigation based on his or her own findings or on information obtained

from individuals or nongovernmental organizations. There exist provisions

of judicial review in the treaty that safeguard against the prosecutor's

taking up frivolous, spurious, or politically motivated complaints.

Toward a New Foreign Policy

Key Recommendations

* The Clinton administration needs to realize that it risks being sidelined

once again, as it was in the landmine negotiations.

* The priority should be a treaty worth signing, establishing an effective,

credible, and independent court, not a marginal and meaningless entity

tailored to win the support of the most conservative U.S. Senators.

* The administration should tap into the currents of actual and potential

citizen support for an effective ICC among church and civic groups, bar

associations, and NGOs.

Any treaty that emerges from the Rome conference will go into effect after

the required number of governments ratify it. The creation of an effective

and credible International Criminal Court is critical to fostering the rule

of law-an often-proclaimed objective of the United States. If a strong

treaty emerges from the Rome conference, and assuming that the U.S. is one

of the signatories, it will be necessary to mount an effective grassroots

campaign to secure Senate ratification. The immediate need, however, is to

ensure that there will be a treaty worth signing and ratifying.

The very problematic U.S. positions on the key issues described above

derive mainly from the insistence of the Pentagon on the ability to prevent

the prosecution of U.S. military personnel for actions undertaken in the

course of duty. The administration cites the global deployment of U.S.

forces, particularly those assigned to peacekeeping and humanitarian

intervention missions, to suggest that it ought to have some special

dispensation when it comes to accountability. "No other country shoulders

the burden of international security as does the United States," David

Scheffer, chief U.S. negotiator for the ICC, said in late February, citing

Security Council mandates, NATO commitments, humanitarian objectives, and

counter-proliferation. "It is in our collective interests that the

personnel of our militaries and civilian commands be able to fulfill their

many legitimate responsibilities without unjustified exposure to criminal

legal proceedings. The permanent court must not be manipulated for

political purposes to handcuff governments taking risks to promote

international peace and security and to save human lives," he added.

Leaving aside the disputable claim that the global deployment of U.S.

military forces is primarily for humanitarian purposes, there are several

reasons why Scheffer's scenario is farfetched. First, the court's

jurisdiction will be limited to genocide, war crimes, and crimes against

humanity-levels of atrocity unrelated to isolated and minor offenses

committed during a peacekeeping or aid delivery mission. Second, if and

when serious crimes and atrocities are committed, it will remain the

paramount responsibility of a national judicial or military justice

system-which certainly exists in the United States-to investigate and

prosecute those alleged to be responsible. One of the desirable effects of

a standing ICC will be to provide an inducement for individual countries to

meet their responsibilities to investigate and prosecute such crimes.

Third, the draft treaty contains checks and judicial review procedures that

would prevent an ICC prosecutor from pursuing politically motivated and

spurious allegations. Only if U.S. troops committed atrocities in the line

of duty and were not investigated and prosecuted by U.S. authorities could

such a case be addressed by the ICC. That is the point of justice for all.

The Clinton administration argues that a treaty establishing a strong

court-one whose operations could not be restrained unilaterally by U.S.

veto power-would stand no chance of being ratified by the

Republican-controlled U.S. Senate. Such an argument is premature, given

that there has not yet been serious advocacy with the Congress or the

general public. Even more to the point, it shortsightedly suggests that the

quality and character of such a potentially critical international

institution should be determined in the final instance by what Senator

Jesse Helms and his colleagues might be willing to accept. Having the U.S.

on board for this international undertaking is an important objective, but

not worth the price of having to settle for a weak and politicized body

with little autonomy and less credibility. What needs to happen now is for

White House proponents of a strong and effective ICC to strategize within

their ranks for a more forward-looking U.S. position. There is a vital

role, also, for an educated and activist citizenry to ensure that the

concerns of the Defense Department are balanced with the stated goal of a

credible and effective court.

Though Washington often proclaims a commitment to multilateralism, it often

fails to support multilateral initiatives that may compel a higher degree

of accountability to the international community. The U.S. should support

an effective ICC-one that will not be impossibly constrained by the

political imperatives of the moment in particular capitals, including

Washington. If the Clinton administration declines to take up this

challenge, then it may find itself once again-as in the Ottawa landmines

negotiations-sidelined by history.

Joe Stork is the Advocacy Director for the Middle East and North Africa

division of Human Rights Watch, in Washington, D.C.