THE POLITICS BEHIND THE U.S. OPPOSITION TO THE INTERNATIONAL CRIMINAL COURT
Michael P. Scharf(1)
I. THE LEGACY OF NUREMBERG
After the Second World War, the international community established the Nuremberg and Tokyo Tribunals to prosecute the major Nazi and Japanese war criminals and said "Never Again!" -- meaning that it would never again sit idly by while crimes against humanity were committed. Fifty years ago, the U.N. began work on the project to establish a permanent international criminal court.
By 1953, the U.N. had drafted a statute for such a court,(2) but for a variety of reasons the international community was not ready to pursue the idea further. Foremost among these was that during the next four decades, there was not a repeat of the unique circumstances that made the Nuremberg and Tokyo Tribunals possible. There were no wars in which a coalition broadly supported by other members of the international community has defeated an obvious aggressor and violator of the laws of war and humanity so decisively as to bring about its complete surrender and subjugation. The conventional wisdom was that only in defeat are major war criminals susceptible to international justice.
Moreover, an international criminal court whose goals included the punishment of aggressive warfare was seen in the context of the cold war as a threat to national sovereignty. For the major powers in particular, the authority to review the legitimacy of the use force or to supersede the criminal jurisdiction of national courts was simply more than they were willing to cede to any international judicial body.
Finally, the formulation of the United Nations Draft Statute for an International Criminal Court in 1953 had the paradoxical effect of setting back the effort to create such a court. Once the document was drafted, the debate shifted from whether to establish an international criminal court to whether to adopt the 1953 Draft Statute, which was extremely ambitious in the powers it conferred on the court with respect to states.
For these reasons, the pledge of "never" quickly became the reality of "again and again " as the world community failed to take action to bring those responsible to justice when 2 million people were butchered in Cambodia's killing fields, 30,000 disappeared in Argentina's Dirty War, 200,000 were massacred in East Timor, 750,000 were exterminated in Uganda, 100,000 Kurds were gassed in Iraq, and 75,000 peasants were slaughtered by death squads in El Salvador.(3)
With the end of the cold war in the late 1980s, the United Nations returned to its long dormant project to create a permanent international criminal court. In 1989, the issue was reintroduced into the agenda of the General Assembly at the urging of a coalition of sixteen Caribbean and Latin American nations led by Trinidad and Tobago, who saw such a court as a way to solve the difficulties which they encounter in prosecuting or extraditing narco-terrorists.(4)
II. INITIAL U.S. RESISTANCE TO THE ICC CONCEPT
Policymakers at the U.S. Departments of State, Justice, and Defense quickly reached the consensus that a permanent international criminal court would not be in the interests of the United States. The attitude of the State Department reflected a residual mistrust of international tribunals left over from the International Court of Justice's adverse ruling in the Nicaragua case,(5) which resulted in the United States withdrawal from the compulsory jurisdiction of the World Court. The Justice Department's resistance stemmed from a belief that the establishment of an ICC would undermine the Department's existing international law enforcement efforts including its controversial authority unilaterally to apprehend international criminals abroad.(6) The Defense Department's opposition reflected concern that an international criminal court might attempt to prosecute U.S. military commanders for internationally controversial actions such as the 1989 invasion of Panama or the 1986 bombing of Tripoli, both of which were the subject of widespread international condemnation.
It was at this time that the author of this article was serving as the State Department Official with responsibility for the issue of a permanent international criminal court. The task I was assigned was to make the Trinidadian initiative "go away. " To accomplish this, the United States proposed that the issue be assigned to the International Law Commission, a U.N. body known for taking several decades to complete its projects. Then, when the International Law Commission submitted a preliminary report on the ICC a year later, the United States responded by listing the many problems that required further study, but purposely avoiding any mention of possible solutions. The plan was to prolong without progressing the international debate on the issue. Thus, at the suggestion of the United States, the U.N. General Assembly instructed the International Law Commission to go back to the drawing board.(7)
Our strategy was working, and the International Law Commission might well still be debating the matter to this day if it were not for the developments in the Balkans in the summer of 1992. Unable to act effectively to halt Serbian aggression in Bosnia, and faced with mounting political pressure to do something constructive in response to continuing reports of widespread atrocities, the United States Government took the lead in proposing the establishment of an ad hoc international tribunal to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia.(8) I was assigned to help draft the U.S. proposals for the Statute and Rules of the ad hoc tribunal as well as the Security Council resolutions establishing the court.(9) The creation of the ad hoc International Criminal Tribunal for Rwanda a year later(10) showed that the machinery and rules which we designed for the recently established Yugoslavia Tribunal could be employed for other specific circumstances and offenses, thereby avoiding the need to reinvent the wheel in response to each global humanitarian crisis.
III. TOWARDS A PERMANENT AD HOC TRIBUNAL
With the creation of the Yugoslavia and Rwanda Tribunals, there was hope among U.S. policymakers that Security Council-controlled ad hoc tribunals would be set up for crimes against humanity elsewhere in the world. Even the Administration's most ardent opponents of a permanent international criminal court had come to see the ad hoc tribunals as a useful foreign policy tool. The experience with the former Yugoslavia and Rwanda proved that an international indictment and arrest warrant could serve to isolate offending leaders diplomatically, strengthen the hand of domestic rivals, and fortify international political will to impose economic sanctions and take more aggressive actions if necessary. Unlike a permanent international criminal court, there was no risk of American personnel being prosecuted before the ad hoc tribunals since their subject matter, territorial and temporal jurisdiction were determined by the Security Council, which the United States could control with its veto.
But then something known in government circles as "Tribunal Fatigue " set in.(11) The process of reaching agreement on the tribunal's statute; electing judges; selecting a prosecutor; hiring staff; negotiating headquarters agreements and judicial assistance pacts; erecting courtrooms, offices, and prisons; and appropriating funds turned out to be too time consuming and exhausting for the members of the Security Council. China and other Permanent Members of the Security Council let it be known that Rwanda would be the last ad hoc tribunal.(12)
Consequently, the establishment of a permanent international criminal court began to be seen by many member states of the United Nations as the solution to the impediments preventing a continuation of the ad hoc approach. Having successfully (and quickly) tackled most of the same complex legal and practical issues that we had identified as obstacles to a permanent international criminal court, the United States Government was left with little basis to justify continued foot-dragging with regard to the ICC. In 1994, the International Law Commission produced a draft Statute for an ICC which was largely based on the Statutes and Rules of the popular ad hoc tribunals.(13) The International Law Commission's draft was subsequently refined through a series of Preparatory Conferences in which the United States played an active role. During this time, the establishment of a permanent international criminal court began to receive near unanimous support in the United Nations.(14) The only countries who were willing to go on record as opposing the establishment of an ICC were the few states that the United States had labeled "persistent human rights violators " or "terrorist supporting states. "
Thus, on the eve of the Rome Diplomatic Conference in the summer of 1998, both the U.S. Congress and the Clinton Administration indicated that they were in favor of an ICC if the right protections were built into its statute. As David Scheffer, U.S. Ambassador at Large for War Crimes Issues, reminded the Senate Foreign Relations Committee on July 23, 1998: "Our experience with the establishment and operation of the International Criminal Tribunals for the former Yugoslavia and Rwanda had convinced us of the merit of creating a permanent court that could be more quickly available for investigations and prosecutions and more cost-efficient in its operation. "(15)
IV. WHAT WENT WRONG IN ROME?
The Rome Diplomatic Conference represented a tension between the United States, which sought a Security Council-controlled Court, and most of the other countries of the world which felt no country's citizens who are accused of war crimes or genocide should be exempt from the jurisdiction of a permanent international criminal court. The justification for the American position was that, as the world's greatest military and economic power, more than any other country the United States is expected to intervene to halt humanitarian catastrophes around the world. The United States' unique position renders U.S. personnel uniquely vulnerable to the potential jurisdiction of an international criminal court. In sum, the Administration feared that an independent ICC Prosecutor would turn out to be (in the words of one U.S. official) an "international Ken Starr " who would bedevil U.S. military personnel and officials.
The rest of the world was in fact somewhat sympathetic to the United States' concerns. What emerged from Rome was a Court with a two-track system of jurisdiction. Track one would constitute situations referred to the Court by the Security Council. This track would create binding obligations on all states to comply with orders for evidence or the surrender of indicted persons under Chapter VII of the U.N. Charter. This track would be enforced by Security Council imposed embargoes, the freezing of assets of leaders and their supporters, and/or by authorizing the use of force. It is this track that the United States favored, and would be likely to utilize in the event of a future Bosnia or Rwanda. The second track would constitute situations referred to the Court by individual countries or the ICC Prosecutor. This track would have no built in process for enforcement, but rather would rely on the good-faith cooperation of the Parties to the Court's statute. Thus, most of the delegates in Rome recognized that the real power was in the first track. But the United States still demanded protection from the second track of the Court's jurisdiction. In order to mollify U.S. concerns, the following protective mechanisms were incorporated into the Court's Statute(16) at the urging of the United States:
First, the Court's jurisdiction under the second track would be based on a concept known as "complementarity " which was defined as meaning the court would be a last resort which comes into play only when domestic authorities are unable or unwilling to prosecute. At the insistence of the United States, the delegates at Rome added teeth to the concept of complementarity by providing in Article 18 of the Court's Statute that the Prosecutor has to notify states with a prosecutive interest in a case of his/her intention to commence an investigation. If, within one month of notification, such a state informs the Court that it is investigating the matter, the Prosecutor must defer to the State's investigation, unless it can convince the Pre-Trial Chamber that the investigation is a sham. The decision of the Pre-Trial Chamber is subject to interlocutory appeal to the Appeals Chamber.
Second, Article 8 of the Court's Statute specifies that the Court would have jurisdiction only over "serious " war crimes that represent a "policy or plan. " Thus, random acts of U.S. personnel involved in a foreign peacekeeping operation would not be subject to the Court's jurisdiction. Neither would one-time incidents such as the downing of the Iran airbus by the USS Vincinnes on July 3, 1988.
Third, Article 15 of the Court's Statute guards against spurious complaints by the ICC prosecutor by requiring the approval of a three-judge pre-trial chamber before the prosecution can launch an investigation. Further, the decision of the chamber is subject to interlocutory appeal to the Appeals Chamber.
Fourth, Article 16 of the Statute allows the Security Council to affirmatively vote to postpone an investigation or case for up to twelve months, on a renewable basis. While this does not amount to the individual veto the United States had sought, this does give the United States and the other members of the Security Council a collective veto over the Court.
The United States Delegation played hardball in Rome and got just about everything it wanted. As Ambassador Scheffer told the Senate Foreign Relations Committee: "The U.S. delegation certainly reduced exposure to unwarranted prosecutions by the international court through our successful efforts to build into the treaty a range of safeguards that will benefit not only us but also our friends and allies. "(17) These protections proved sufficient for other major powers including the United Kingdom, France and Russia, which joined 117 other countries in voting in favor of the Rome Treaty. But without what would amount to an iron-clad veto of jurisdiction over U.S. personnel and officials, the United States felt compelled to join China, Libya, Iraq, Israel, Qatar and Yemen as the only seven countries voting in opposition to the Rome Treaty.
It is an open secret that there was serious dissention within the U.S. Delegation on this question and that the position of the Secretary of Defense ultimately carried the day. As a former Republican member of Congress, there has been conjecture that Secretary of Defense William Cohen was influenced by Senator Jesse Helms (R-NC), a vocal opponent of the ICC. President Clinton, for his part, has proven to be uniquely vulnerable on issues affecting the military. Thus, rather than focus his attention on the negotiations in Rome as they came to a head, Clinton immersed himself in a historic trip to China during the Rome Conference. And in the midst of several breaking White House scandals in the summer of 1998, there was to be no last minute rescue of the Rome Treaty by Vice President Al Gore as had been the case with the Kyoto Climate Accord a year earlier.
Once it decided that it would not sign the Court's Statute, the primary goal of the United States was to prevent the ICC from being able to exercise jurisdiction over U.S. personnel and officials. As Ambassador Scheffer explained to the Senate Foreign Relations Committee: "We sought an amendment to the text that would have required ... the consent of the state of nationality of the perpetrator be obtained before the court could exercise jurisdiction. We asked for a vote on our proposal, but a motion to take no action was overwhelmingly carried by the vote of participating governments in the conference. "(18) Had the U.S. amendment been adopted, the United States could have declined to sign the Rome Statute, thereby ensuring its immunity from the second track of the court's jurisdiction, but at the same time permitting the United States to take advantage of the first track of the Court's jurisdiction (Security Council referrals) when it was in America's interest to do so.
Having lost that vote, the United States began to argue that international law prohibits an ICC from exercising jurisdiction over the nationals of non-parties.(19) Echoing the arguments he made in Rome, David Scheffer testified before the Senate Foreign Relations Committee that "the treaty purports to establish an arrangement whereby U.S. armed forces operating overseas could be conceivably prosecuted by the international court even if the United States has not agreed to be bound by the treaty. ... This is contrary to the most fundamental principles of treaty law. "(20) Another proponent of this view told the Senate Foreign Relations Committee: "The Fact is that this Court's assertions of authority over Americans is illegal ... The Court is entirely a matter of treaty. It is a creature of this treaty. Unless we join the treaty, it cannot exercise jurisdiction over the United States or its citizens. "(21)
There are several flaws to the United States Government's argument about the ICC's jurisdiction over the nationals of non-States Parties. To begin with, it is a distortion to say that the Rome Statute purports to impose obligations on non-States Parties. Under the terms of the Treaty, non-parties are not obligated to extradite indicted persons to the ICC, to provide evidence to the ICC, or to provide funding to the ICC. However, this does not mean that the nationals of non-States Parties are immune from the ICC's jurisdiction. If such nationals are accused of committing an offense in the territory of a State Party, the ICC can issue an indictment and initiate proceedings against them.
The core crimes in the ICC treaty -- genocide, crimes against humanity, and war crimes -- are crimes of universal jurisdiction. These crimes are so universally condemned that those who commit them are considered hostis humani generis (an enemy of all humankind), and any nation in the world has the authority to exercise jurisdiction over such persons without the consent of the individual's state of nationality.(22)
There is nothing novel under international law about a State exercising jurisdiction over the nationals of another State accused of committing an offense (whether or not of a universally condemned nature) in the territory of the former. The only difference here is that rather than prosecuting in domestic courts the state has delegated its authority to prosecute to an international body. This is exactly what was done at Nuremberg 50 years ago. In addressing the propriety of this arrangement, the Nuremberg Tribunal held: "The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. "(23)
Finally, there is nothing unusual about the conferral of jurisdiction over nationals of non-State parties through the mechanism of treaty law. The United States is party to a dozen anti-terrorism treaties that provide universal jurisdiction over these crimes, and empower States parties to investigate and prosecute perpetrators of any nationality found within their territory. The United States has exercised jurisdiction over foreigners on the basis of such treaties, without the consent of their state of nationality and even where the State of nationality was not party to the treaty. For example, in United States v. Yunis, the United States indicted, apprehended and prosecuted a Lebanese national for hijacking a Jordanian Airliner from Beirut, where two of the passengers were U.S. citizens.(24) The U.S. asserted jurisdiction on the basis of the Hague Hijacking Convention,(25) a treaty which provides universal jurisdiction over hijackers, despite the fact that Lebanon was not a party to the treaty and did not consent to Yunis's prosecution in the United States.(26) The Yunis precedent was reaffirmed just last year in United States v. Ali Rezaq, where the United States apprehended and prosecuted a Palestinian for hijacking an Egyptian airliner.(27)
In light of this precedent, the United States' position that international law prohibits the ICC from exercising jurisdiction over the nationals of non-State parties is not just unfounded, it also has the potential of negatively effecting existing U.S. law enforcement authority with respect to terrorists and war criminals. Had the above quoted Scheffer remarks been on the record prior to the Yunis and Ali Rezaq cases, the defendants in those cases would undoubtedly have cited them in an attempt to estop the United States from asserting jurisdiction under the Hijacking Convention over nationals of non-States Parties.
V. U.S. POLICY IN THE AFTERMATH OF ROME
During the June 23 Hearings before the Senate Foreign Relations Committee, Senator Jesse Helms (R-N.C.) urged the Administration to take the following steps in opposition to the establishment of an international criminal court: First, that it announce that it would withdraw U.S. troops from any country that ratifies the International Criminal Court Treaty. Second, that it veto any attempt by the Security Council to refer a matter to the Court's jurisdiction. Third, that it block any international organization in which it is a member from providing any funding to the International Criminal Court. Fourth, that it renegotiate its Status of Forces Agreements and Extradition Treaties to prohibit its treaty partners from surrendering U.S. nationals to the International Criminal Court. Finally, that it provide no U.S. soldiers to any regional or international peacekeeping operation where there is any possibility that they will come under the jurisdiction of the International Criminal Court. According to Senator Helms, these measures would ensure that the Rome Treaty will be "dead on arrival. "(28)
Ambassador Scheffer was non-committal as to the adoption of Senator Helms' proposals, saying only that "the Administration hopes that in the years ahead other governments will recognize the benefits of potential American participation in the Rome treaty and correct the flawed provisions in the treaty. "(29) Ambassador Scheffer's testimony suggested that the U.S. response to the International Criminal Court might parallel its efforts to reform the 1982 Law of the Sea Convention. The United States refused to sign that treaty until amendments were adopted concerning its seabed mining regime. In 1994, the signatories to the Law of the Sea Convention adopted an Agreement containing the revisions sought by the United States and the United States signed the treaty, which still awaits Senate advice and consent to ratification.
What this means in the context of the ICC is that the United States will seek to amend the treaty to require the consent of a national state that has not ratified the treaty in cases involving "acts of officials or agents of a state in the course of official duties acknowledged by the state as such. "(30) This proposal is substantially narrower than the initial U.S. position that no person could be prosecuted without the consent of the State of nationality. The amendment would require states to either acknowledge that atrocities were committed as state policy or to launch a serious criminal investigation into the incident if they desire to immunize their officials from the ICC. The United States first made this proposal in the last few days of the Rome Diplomatic Conference -- at a point in time when other delegations were no longer willing to compromise on the nationality issue.(31)
If this had been the United States' opening position, many believe the proposal would have been adopted by the Diplomatic Conference. But as it became increasingly obvious that the United States was not going to sign the Rome Treaty, the willingness to compromise began to evaporate. The United States is betting it will have more luck with the issue through a series of bilateral negotiations than it did in the frenzied atmosphere that characterized the final days of the Rome Conference. But with the large number of countries in favor of the Rome Statute, the United States will face a much more difficult road than it did with amending the Law of the Sea Convention. In the interim, Ambassador Scheffer indicated that the United States would continue to pursue ad hoc judicial measures such as expanding the jurisdiction of the existing Security Council-created ad hoc war crimes tribunals.(32)
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