Excerpt: Toward an International Criminal Court?

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Evaluating the International Criminal Court; Policy Speech Options

Purpose

In July 1998, after years of preparatory work and five weeks of negotiations in Rome, 120 states voted to approve a "statute," or treaty, establishing an International Criminal Court (ICC), with jurisdiction over genocide, crimes against humanity, war crimes, and the still-undefined crime of aggression. Despite our strong interest in creating a court, the United States voted against the Rome Statute, concluding that it could pose an unacceptable risk to U.S. military personnel and to your ability as commander in chief to deploy forces worldwide to protect the United States and global interests. A year later, as our principal allies prepare to ratify the statute and bring the court into being, it is time to take a clear position supporting it, opposing it, or specifying the changes needed for our support.

The United States has actively supported the establishment of such a court since 1995. The immediate question is whether this court--the court negotiated in Rome--will be able to achieve enough of the benefits we seek from a permanent international court at an acceptable cost. Some now argue that, on balance, any such court would disserve American interests. Others contend that with the court becoming a reality, the costs of not joining far outweigh the costs of joining.

The conflict in Yugoslavia sharpens this debate and hastens the need for a decision. Although the actions of Yugoslav President Slobodan Milosevic and his subordinates fall under the jurisdiction of the ad hoc tribunal established by the United Nations to prosecute war crimes in the former Yugoslavia, the expulsion of hundreds of thousands of ethnic Albanians from Kosovo--and the massacre of many--is a chilling example of the kinds of crimes the ICC is intended to punish. Supporters of the court in its present form insist that only an effective permanent court can make the prospect of punishment for such atrocities sufficiently certain to deter their commission. Opponents of the ICC draw on the Kosovo crisis to bolster their claim that the court could be turned against us. They point out that when the Russian foreign minister initially denounced the NATO bombing campaign, he called for U.S. and other NATO leaders to be held accountable in accordance with international law. Indeed Milosevic himself asked the World Court to declare the bombing illegal, but the court found that it lacked jurisdiction (although it promised "fuller consideration" of the jurisdictional question at a later date). Independent of the merits of this debate, the apparent conflict between our humanitarian justification for NATO action and our vote against the ICC in July 1998 feeds suspicion and confusion about our foreign policy.

Beyond Kosovo, our position on the court will affect our ability to exercise leadership in shaping the international order for the next century. A historic trend in international law since 1945, accelerated since the end of the Cold War, has been to hold governments accountable for the treatment of their own citizens and to hold individual officials accountable for government actions. Thus, a critical challenge for the 21st century will be to develop institutions designed to regulate individuals as well as states within a global rule of law. The ICC debate gives us a chance to articulate a vision of what those institutions should look like--whether they should be national or international, permanent or ad hoc, global or regional. The result will be part of the legacy of your administration.

This memorandum reviews the development of international criminal law since 1945 and the evolution of U.S. policy toward an ICC. It provides a comparative analysis of three basic policies toward the ICC, followed by three draft speeches, each presenting and justifying a clearly articulated policy toward the proposed ICC.

Option One: Endorse the ICC--Sign as Is and Ratify When Possible

In spite of its current imperfections, the ICC established by the Rome Statute advances our interests and affirms our ideals. Tyrants guilty of mass atrocities against their own people and their neighbors threaten regional stability and ultimately global order, forcing us to impose sanctions and often to send soldiers. The ICC will serve notice on leaders like Milosevic and Saddam Hussein that they will be held responsible for their actions, thereby creating a meaningful deterrent. Equally important, it gives U.S. policymakers a standing mechanism for responding to horrific crimes committed against millions of victims, a response demanded by the American people and essential to the moral fabric of the nation. Regarding the danger that the ICC could be used against the United States, the Rome Statute provides more than adequate safeguards for American troops and leaders from frivolous prosecutions. In any event, with the court becoming a fait accompli, the best protection would be to sign and ratify the statute and thus ensure that U.S. involvement in the selection of judges and prosecutors will render this scenario almost impossible.

Option Two: Reject and Oppose the ICC

The current formulation of ICC jurisdiction in the Rome Statute contains serious defects that threaten U.S. freedom of action and expose America's civilian and military leaders and its servicemen and women to politically motivated prosecutions. The text adopted in Rome does not allow an adequate role for the U.N. Security Council, includes vague definitions of crimes that are susceptible to abuse, and exposes U.S. leaders and troops to a largely unaccountable prosecutor. Moreover, the prohibition on reservations to the statute is inconsistent with U.S. law and establishes a dangerous precedent. Perhaps most serious is the planned court's claim to exercise jurisdiction over even nonparties in certain situations. This encroachment on American constitutional safeguards requires that the United States not only reject the statute, but that it actively oppose the court.

Option Three: Improve the ICC--Cooperate as a Nonparty While Working for Changes

The broad goals of the ICC align with American interests in the promotion of international law and justice. The Rome Conference made much progress toward achieving a specific treaty text compatible with U.S. interests. The ICC project therefore deserves continuing American support and engagement. Yet serious deficiencies in the statute remain, deficiencies that must at least delay signature and ratification. These include the statute's undefined jurisdiction over aggression, inadequate limits on the initiation of prosecutions, and a last-minute provision related to Israel's policy toward settlements in occupied territories. Above all, the United States must strengthen guarantees that American military personnel will not be prosecuted internationally without U.S. concurrence. A stance of continued engagement, however, offers the best prospects for clarification of the court's mandate and confirms our dedication to human rights and justice.

A Possible Synthesis

While not developed in draft speech form, one can imagine synthesizing elements of Options One and Three. There was some suspicion at Rome that the United States was urging changes in the text without committing itself to sign the agreement if they were accepted. The U.S. delegation to the Preparatory Commission meetings could make clear that in exchange for key modifications to provide enhanced protection for American troops and policymakers, the United States will sign the statute. Specific reforms should include an "official acts" exception, assurances that Status of Forces Agreements (SOFAs) will immunize U.S. troops from foreign prosecution, and measures ensuring that nonparty countries cannot bring charges before the court without submitting to investigation themselves. We should work with our major allies to make their ratification and continued support for the court contingent on securing our signature. They are more likely to do so if we make clear that these proposed changes will elicit our signature rather than set the stage for further demands to alter the text negotiated in Rome.

Following this memorandum are the three basic options presented as speeches so that you can get a feel for how each case could be made. Each speech varies in form as well as content; each takes a very strong position in favor of one of the options. The hope is to clarify the issues and their implications in order to help you formulate your own position.

The ICC stands at the crossroads of American grand strategy, the search for global justice, and the changing architecture of the international system. Moreover, the decision concerning the ICC arises at the end of a decade of post Cold War disorder resulting from ethnic and religious conflicts, failed states, civil wars, and local and regional power struggles. The crisis in Kosovo highlights fundamental questions regarding not only lessons learned from previous conflicts but also changing views about the design of global and regional security regimes. The discussion that follows does not address these larger concerns; it can only indicate how a particular position on the ICC might intersect with them.

Background

After World War II, the international community, outraged at the atrocities committed by the Nazi regime, took action at Nuremberg against many of the leaders responsible. The Nuremberg trials, in turn, helped establish a basic framework and precedent for the prosecution of war crimes and crimes against humanity. The Geneva Conventions of 1949 codified and expanded the rules of war and included basic protections for civilians and combatants involved in civil war. The International Law Commission formulated the Nuremberg Principles in 1950 and concluded a draft Code of Offenses against the Peace and Security of Mankind in 1954. But the development of a regime holding individuals accountable for crimes under international law slowed considerably during the Cold War.

The chronology of crimes since Nuremberg is long. In Cambodia, the Khmer Rouge was responsible for approximately two million deaths and disappearances during its bloody rule in the 1970s. In El Salvador, government troops bent on subduing an insurgency attacked and killed civilians, including children, as they hunted their enemy. A strong case can be made that Iraq's Saddam Hussein committed genocide by ordering the chemical weapons attack on Kurdish villages in northern Iraq and that his gruesome treatment of Kuwaiti prisoners during the Gulf War constituted war crimes. At least half a million people were killed and others maimed in the Rwandan genocide in 1994. From 1992 to 1995, Bosnian Serb forces engaged in a massive ethnic cleansing campaign affecting several hundred thousand people and culminating in the massacre of more than seven thousand men at Srebrenica. And 1999 saw the displacement of a million or more Kosovars, along with numerous murders, rapes, and other acts of ethnic brutality.

In the face of these tragedies, the United States has led efforts to achieve some measure of justice. We have been the leading supporter of the War Crimes Tribunals established by the United Nations for the former Yugoslavia and for Rwanda. We have provided funds, attorneys, investigators, and other staff, including military and intelligence assistance for their operations. With U.S. support, both tribunals have made significant progress. The International Criminal Tribunal for the Former Yugoslavia has in its custody almost one-third of the individuals publicly indicted and has passed down several sentences. NATO forces in Bosnia recently arrested a general alleged to be responsible for operations at Srebrenica. Moreover, the existence of the tribunal has contributed to isolating extremist elements in Bosnia and discouraged their resistance to the NATO-led peacekeeping effort there. The War Crimes Tribunal for Rwanda has in custody several key organizers of the 1994 genocide and recently handed down precedent-setting convictions for genocide. The United States is currently promoting the establishment of an international tribunal to prosecute leaders of the Khmer Rouge.

The ICC itself has been a long time in the making. The United Nations envisioned such a court soon after Nuremberg, but the project foundered during the Cold War. The tribunals for the former Yugoslavia and for Rwanda breathed new life into the project and taught the international community valuable lessons about international criminal prosecution. Importantly, the tribunals helped further develop the international law that could be applied by the ICC. But the process of creating and operating the individual tribunals has been expensive and redundant, providing an additional reason for the creation of a standing ICC.

In the presidential address to the U.N. General Assembly in September 1997 the United States called for the establishment of a permanent international court to prosecute the most serious violations of international humanitarian law. The U.S. ambassador for war crimes (a position created in 1997) led the U.S. delegation to the Rome Conference and played a major role in laying the groundwork for the ICC. Congressional support for a court, however, has been considerably more muted. Leading internationalists in Congress were almost entirely silent on the issue during the Rome Conference. Shortly before the conference, the Pentagon took the unusual step of calling together allied military attach‚s to discuss the statute. It opposes such elements as the lack of Security Council control of prosecutions, the inclusion of aggression as a crime, and the scope of some of the war crimes provisions.

Over the course of five weeks of complex negotiations in Rome, the United States found itself in opposition to a large group led by some of our closest allies, including Germany, Canada, and Britain, all of whom strongly support a court. The American delegation achieved some very significant successes in protecting U.S. interests during the drafting process but was ultimately unable to support the final text of the Rome Statute. The final vote on the statute was 120 to 7; voting with the United States in opposition were Iraq, Libya, Qatar, Yemen, China, and Israel. The Rome Statute will come into effect when 60 nations have signed and ratified it; at present, 82 nations have signed, and 3 have ratified, though many more are making preparations to do so. In particular, the French, German, British, and Italian governments are all taking the preliminary steps necessary to ratify.

A detailed list of U.S. objections to the statute, drawn from Ambassador David Scheffer's statement before the Senate Foreign Relations Committee on July 23, 1998, is reprinted in Appendix A. Public debate since the conclusion of the Rome Conference has focused on four key concerns:

The danger that U.S. military personnel could be brought before the ICC for political reasons.
The degree of Security Council control over prosecutions initiated by the ICC prosecutor.
The ambiguity of the crimes over which the ICC would exercise jurisdiction, particularly the crime of aggression, which could conceivably extend to some U.S. troop deployments, and the alleged crime of settlement in an occupied territory, which would arguably implicate Israeli leaders for activities in the West Bank and the Gaza Strip.
The relationship between the ICC and national judicial processes.

Since the conclusion of the Rome Conference, the United States has been actively participating in Preparatory Commission meetings designed to reach agreement on outstanding issues necessary to make the court fully operational.

The Options

As you read the distilled options below and the draft speeches that follow, it is important for you to bear in mind one general caveat and two specific points. Arguments for the different options mix moral, political, and pragmatic concerns in ways that frequently lead proponents of different positions to speak past each other.

At a philosophical level, the debate focuses on the moral obligations of the United States. Option One contends that the United States must do all it can to prevent mass atrocities when it can do so at reasonable cost. In Option Two, the moral imperative animating the court is balanced against and ultimately outweighed by the imperative of protecting American liberties, sovereignty, and constitutional processes from any encroachment.

In part, this debate hinges on the anticipated functioning of the ICC: Will it be used responsibly or irresponsibly? But the positions also reflect very different attitudes toward the development and expansion of international law. Option One presents international law as a firm ally of American interests and a consistent goal of American policy, while in Option Two it is treated as an increasing danger to American liberties and effective foreign policy. At the heart of this debate is the unavoidable question of how much sovereignty the United States is willing to sacrifice to aid in the fortification of a global rule of law.

At a policy level, the options differ on the likely effects of the ICC. Option One presents the court as an institution that will further peace and security while eventually limiting the need for costly and dangerous foreign deployments. This forecast rests on two assumptions. The first is that holding particular individuals responsible to the international community for their crimes will break self-perpetuating cycles of violence and impunity. The second is that prosecutions will have a deterrent effect on would-be perpetrators. Option Two is much more dubious about the ability of the court to promote peace and security effectively because it questions both whether peace and justice are always compatible and whether the ICC will have any meaningful deterrent effect. Option Three accepts the main premises of Option One but concedes that some of the concerns raised in Option Two require additional safeguards to those provided in the Rome text.

At a pragmatic level, the debate is about simple institutional efficiency. Both Options One and Three make the case that the ICC is a better long-term solution than continued ad hoc tribunals, each of which must begin largely from scratch and is subject to veto in the U.N. Security Council. Moreover, as a single, ongoing structure the ICC would avoid problems of inconsistent judgments that can arise with separate, ad hoc structures. (It was to ameliorate this problem that the Rwandan and Yugoslav tribunals share a prosecutor's office and appeals chamber.) In Option Two, however, the gains in institutional efficiency matter very little when weighed against the dangers to American freedom of action and sovereignty.

More specifically, you should keep in mind the following premises underlying all the options:

The options presented here often discuss the advantages and disadvantages of the ICC in the context of U.S. signature and approval by the Senate. Yet most observers agree that even with a full-scale administration effort, ratification is highly unlikely in the present political context. This memorandum lists the likely consequences of an effort to secure ratification, if you decide to submit the statute to the Senate. However, even without ratification, signature would impose an obligation under international law not to undercut the provisions of the statute pending the Senate's decision on whether or not to tender its advice and consent.
The options presented assume that the basic structure of the Rome Statute will remain unaltered. But as noted above, the United States has been participating in Preparatory Commission work since the completion of the conference and will attempt to introduce certain changes before the final treaty enters into force; the fate of these proposals is uncertain.