Information Access Company,

a Thomson Corporation Company; ASAP

August 28, 1999

The United States and The International Criminal Court;

disturbing record of US opposition to humanitarian issues and the establishment of the permanent International Criminal Court to act on crimes against humanity

By Garrett, Stephen A.

Members of the U.S. delegation sat in stony silence amid the celebration going on around them.

IN MAY 1981, at a meeting of the World Health Organization in Geneva, some 118 delegates voted in favor of new restrictions on the advertising of baby milk formula in third world countries. The aggressive marketing of this kind of formula in previous years had produced an alarming rise in infant gastroenteritis, malnutrition and other health problems. The furor

surrounding the infant formula issue eventually led a coalition of nongovernmental groups to organize an international boycott of Nestle and other baby formula companies. The Geneva conference was striking in that

for once there was near unanimity within the international community concerning a humanitarian question. In fact, only one country voted against

adopting the W.H.O. guidelines: the United States. Assistant Secretary of State Elliott Abrams explained the American stance at the time by saying that the Geneva standards clashed with guarantees of "free speech and free economic enterprise."

Last July in Rome there was an echo of the Nestle affair as Washington once again went against the vast majority of nations on a humanitarian issue. In this instance it was the establishment of a permanent international criminal court (ICC) with new powers to indict and try

individuals guilty of participating in genocide, crimes against humanity and war crimes. The creation of such a court was seen by most countries as a logical continuation of the precedent first established at the Nuremberg

trials, and more recently by the ad hoc U.N. tribunals set up to deal with atrocities committed in the former Yugoslavia and in Rwanda. In 1994, the International Law Commission of the United Nations presented a draft statute for an international criminal court to the U.N. General Assembly. Over the next three years a preparatory committee met on six occasions to sort out all the contentious issues having to do with such a court. Last

July's conference in Rome represented the conclusion of the whole process.

The conference reflected not just the efforts of governments, but of a huge range of nongovernmental organizations. Indeed the Rome meetings were unique in the depth and range of NGOs that participated and that either explicitly or implicitly attempted to speak for the collective conscience of the global community. Leading and coordinating the efforts of the NGOs was the Coalition for an ICC (CICC), an umbrella group of

some 800 human rights groups, including Amnesty International, Human Rights Watch and the Lawyer's Committee for Human Rights. The convener of the

CICC, William Pace, persuasively argued that the organization, while not an official representative of "global civil society," did reflect "its many voices and sectors." The CICC established close working relations

with "like-minded states" (those firmly committed to the ICC, including most of the industrial democracies and the Vatican). In so doing, CICC established, as Pace put it, that "the days of effective exclusion of NGO's from international treaty processes are over."

After an intense five-week series of negotiations in Rome, delegates from some 120 countries voted on July 17 to establish the ICC. Upon the conclusion of the voting, delegates clapped, cheered, hugged and took

snapshots to commemorate the establishment of the first permanent international court in history specifically designed to address the most egregious kinds of human rights abuses. Seven countries expressed their formal opposition to the new court, among them the United States, and members of the American delegation sat in stony silence amid the celebration going on around them. Joining Washington in its rejection of the Rome treaty were such bastions of freedom as Libya, Algeria, Yemen,

Qatar and China.

The ICC will become a reality once 60 nations have formally ratified the document emerging out of Rome.

It will be based in the Hague (Netherlands) and will have 18 judges from an equal number of countries, each of them appointed to nine-year terms. The ICC will also have a full-time prosecutor with authority to initiate cases on his own, although the United Nations Security Council and

individual countries will have the right to suggest possible prosecutions on their own. It was agreed at Rome that the court would have no retroactive authority, but instead would concern itself only with cases that developed after it comes into being. The ICC will have an investigatory branch as well as a separate appellate court to hear appeals of its verdicts. Many of the standard judicial protections found in the

American Constitution are included in the Rome statute (for example, those having to do with protection against double jeopardy). The maximum penalty the ICC will be able to impose is life imprisonment, to be served in the

prison system of any of several countries signifying in advance that they are willing to incarcerate those so convicted.

The Clinton Administration explained its negative vote on the ICC largely in terms of its fear that American military personnel serving overseas on peacekeeping missions might be dragged before the ICC on

trumped-up charges of war crimes presented by an ideologically biased prosecutor. As State Department spokesman James Rubin put it, the Rome statute was "a rush to judgement that does not adequately reflect the important role that America and our armed forces play around the world." Even a cursory review of the ICC's proposed structure suggests, however, that the stated rationale for Washington's rejection of the document was largely a chimera, and that other, less admirable considerations determined the American position.

The Rome treaty actually allows a member country to deny ICC jurisdiction over its nationals in war crimes cases for a period of seven years. Moreover, Article 8 of the statute defines "war crimes" as actions "committed as a part of a plan or policy" or as part of a "widespread or systematic attack directed against any civilian population." This clearly suggests that isolated (and unauthorized) individual transgressions are unlikely to be part of the court's agenda. It is hard to imagine, in any event, that the United States has much to fear from a prosecution being undertaken of its soldiers because it had a "plan" for large-scale commission of war crimes. Equally important, the Rome document establishes the principle of "complementarity," which means that the court can take action only if the suspect's own country, through its regular judicial system, has failed to address accusations of misconduct. Finally, the United Nations Security Council (of which the United States is a permanent member) can on its

own authority prevent the ICC from taking action against the armed forces of any country involved in an officially approved UN peacekeeping mission.

Ironically, President Clinton, as well as Secretary of State Madeline Albright, had earlier been strong supporters of the idea of an international criminal court. In an address to the United Nations General Assembly in September 1997, for example, the President proclaimed that "before the century ends, we should establish a permanent international criminal court to prosecute the most serious violations of humanitarian law." David Scheffer, the chief U.S. delegate at Rome, noted that on at least five other occasions the President had reiterated his support for an ICC, and he assured other countries early on that though the United States did not accept all the proposals being advanced for the functioning of the ICC, that did not mean that it was in any way hostile to the idea itself.

But when it came time for a final vote on the Rome statute, Ambassador Scheffer mournfully proclaimed his "deep regret" that the conference had left the U.S. delegation "with such profound misgivings and objections." These misgivings were evidently so deeply felt that the United States had for some weeks not been content simply to argue the relative merits of including this or that provision in the ICC statute, but instead had increasingly adopted strong-arm tactics to persuade others that the whole idea of the ICC as proposed by the "like-minded states" was fatally flawed. For example, pressure was put on certain third world countries

receiving American economic assistance to withhold their assent to the ICC In a series of "talking points" prepared for Defense Secretary William Cohen prior to a meeting with German defense officials, it was even suggested that Secretary Cohen raise the possibility of a withdrawal of American forces from Europe if the ICC statute should be approved. President Clinton did his own bit by writing to Italian Prime Minister Romano Prodi urging him to use his influence to bring other nations around to the American position.

How to account for the negative American stance in Rome, given that the actual provisions of the ICC statute presented relatively little threat to American servicemen? Perhaps the position taken by Washington could have been predicted by its performance at the Ottawa conference on anti-personnel land mines in December 1997. A treaty banning all such mines received the support of some 121 countries, with the United States once again opposing it (on the grounds that U.S. troops would be put at risk in places like Korea with such a treaty). It is widely assumed that President

Clinton felt it unwise to spend his limited political capital on fighting domestic resistance to the land mine treaty, especially from the Pentagon and conservative members of Congress. Clintonn's caution on the matter wen to extremes; he declined even to congratulate, let alone meet with, Ms. Jody Williams, head of the International Campaign to Ban Landmines, who, along with her organization, received the Nobel Peace Prize for their efforts to eliminate these particular weapons.

The Presidential rejection of the ICC statute amounted to a repeat performance, particularly in its obeisance to the political clout of the anti-ICC forces in Washington. At the beginning of April, evidently on its own initiative, the Pentagon held a briefing for some 100 foreign military attaches in Washington that laid out the supposed dangers to peacekeeping forces of all nations if the jurisdiction of the ICC was not very narrowly defined. The evident rationale behind this meeting was to encourage the attaches to lobby their respective governments to go slow in their support of an international criminal court. Around the same time, Senator Jesse Helms, chairman of the Senate Foreign Relations Committee, announced in a letter to Secretary Albright that he was "unalterably opposed to the creation of a permanent U.N. criminal court" and that any treaty establishing such a court would be "dead on arrival" in the Senate unless Washington wielded veto power over it. The sub-text of Senator Helms's opposition

to the Rome statute-shared by other opponents of the treaty-was his belief that no American citizen should ever be forced to

answer before an international forum about alleged human rights abuses. This has not prevented him and others, however, from pushing strongly for ad hoc international courts to try the likes of Saddam Hussein, Pol Pot and similar figures.

President Clinton evidently felt once again that it was the better part of valor not to throw U.S. support behind the ICC statute in the face of this sort of opposition. Admittedly, ratification of the Rome treaty would no doubt have faced very tough going in a Senate that is content-and without evident embarrassment-to have someone like Senator Helms head its principal foreign policy committee. One might have hoped, however, for a principled response: The Clinton Administration could have signed the ICC statute and to this extent associated itself with the overwhelming

majority of nations on a critical humanitarian issue. Under these circumstances, the onus of American non-participation in the ICC would have properly fallen on the obstructionist and essentially anti- internationalist forces in Congress. At the very least, the attempt to gain ratification could have occasioned a spirited public debate on the merits of the ICC Such a debate would have proved invaluable in educating the American public on the issues involved. In a best-case scenario-assuming the Administration undertook the same sort of full-court press for America's joining the ICC as it did for expansion of NATO-the outcome would have been hard to predict.

As it is, this whole affair raises some basic questions about the current willingness-and capacity-of the United States to take an appropriate role in moving international humanitarian law toward a higher standard.

Ambassador Scheffer's dismissive comment that "those who seek to create a theoretical human rights castle out of the court are deluding themselves" is particularly unsettling in this regard. As the Rome conference approached its end, Canadian Foreign Minister Lloyd Axworthy offered the plaintive observation that he did not expect Washington to sign the treaty, but at least he hoped it would not be "aggressively opposed" to its doing its work. This is a melancholy commentary indeed on the leadership of the United States in an important area of international relations.

Stephen A. Garrett is a professor at the Graduate School of International Policy Studies at the Monterey Institute of International Studies in California. His book on humanitarian intervention will appear this spring.