U.S. Cheats Justice in Opposing World Court

WASHINGTON —  As President Bill Clinton announced that U.S. forces had struck terrorist targets, U.S. officials were doubtless bracing for the scrutiny that would inevitably follow. And just as surely, Pentagon officials were relieved they could still undertake such missions free of at least one constraint--an international criminal court peering over their proverbial shoulders, scrutinizing U.S. actions for possible war crimes.

It was that specter that led the administration to vote against the treaty for an international criminal court approved last month in Rome. While 120 nations voted for the treaty, the United States was joined in opposition by six other countries--including such pariah states as Libya and Iraq. The lopsided vote marked a humiliating failure for the U.S. delegation; worse, it evoked a failure of U.S. leadership in support of efforts to combat impunity in crimes against conscience.

In the aftermath of Rome, critics have faulted the administration for subordinating its longtime support for those efforts to its fears that politically motivated prosecutions might be directed against U.S. soldiers. They point out that the treaty contains a raft of stringent safeguards against this very prospect.

But these criticisms fail to capture the United States’ most stunning failures vis-a-vis the conference. These include the astonishingly inept execution of U.S. policy as framed by the administration. Ironically, human-rights advocates, whose vision for the ICC had been derided as a “dream factory” by a senior U.S. official before Rome, proved more adept in advancing their position than the U.S. delegation. The key problem was the extent that execution of U.S. policy has been shaped--and undermined--by the views of Senate Foreign Relations Committee Chairman Jesse Helms (R-N.C.).

Going into the Rome conference, U.S. policy had two overarching goals. First, the United States, which provided singular leadership in support of the war crimes tribunals established for the former Yugoslavia and Rwanda, was, in principle, committed to the creation of a permanent court to offer an antidote to the impunity that has nurtured inhuman crimes. Second, the U.S. delegation was determined to secure an impenetrable shield against prosecution of U.S. soldiers.

It was not easy to strike the proper balance between these two goals: How could the U.S. be assured the right to block prosecutions without also giving rogue regimes an impunity veto?

The U.S. position was also going to be a hard sell in Rome. It was clear after more than three years of preparatory meetings that important aspects of the U.S. position would be opposed by most countries at Rome--including such key allies as Germany, Britain and Canada.

Exceptionally skilled diplomacy was in order. Instead, the U.S. government’s approach to the Rome conference was a study in ill-conceived strategy.

Perhaps the lion’s share of the blame belongs to Helms, who announced several months ago that any treaty exposing U.S. soldiers to even a theoretical possibility of prosecution would be dead on arrival at the foreign relations committee. It was a memorable sound bite. But however well it played in Washington, Helms’ statement could not have been more ill-considered. Why should other countries accommodate U.S. negotiating demands when Helms had vowed that the United States would not participate in any version of the ICC that a majority of states could support?

The Pentagon further undermined the U.S. delegation’s ability to secure the strongest protections for U.S. soldiers by resorting to patently counterproductive tactics. As the Rome negotiations neared the final stages, for example, talking points were drafted for Defense Secretary William S. Cohen suggesting that the U.S. might remove its overseas troops, including those in Europe, if the conference approved a German proposal giving the ICC universal jurisdiction. Under that proposal, the ICC could exercise jurisdiction over nationals of any state--a right every state’s courts already possess with respect to crimes the ICC can punish--once a range of stringent preconditions were satisfied. The U.S. threat was unnecessary--it was clear that the German proposal had no change of success--and it provoked a predictable backlash.

Having thus gone a long way toward alienating even its staunchest allies, the U.S. delegation could not block a provision it should have been able to head off. Article 12 of the treaty, adopted instead of the German proposal, enables the ICC to exercise jurisdiction over serious war crimes and crimes against humanity if either the state where the crime occurred or the state of the defendant’s nationality is a party to the Rome treaty or consents to the court’s jurisdiction. The U.S. opposed this, insisting the court should never be able to exercise jurisdiction without the consent of the state of the defendant’s nationality.

Article 12 is scarcely the menace U.S. officials insist--they claim Saddam Hussein could subject U.S. soldiers to the ICC’s jurisdiction for crimes allegedly committed in Iraq. This assertion confuses the issue of state consent with the question of how a prosecution can be triggered in the first place. In fact, Article 12 does not even become relevant unless a formidable set of jurisdictional hurdles are cleared. Still, Washington might have persuaded other states to support its position had it not already squandered so much of its negotiating leverage.

In the aftermath of Rome, the administration has affirmed what was already clear--it will not sign the ICC treaty. The issue now is how it will oppose it. Among the options now under consideration are: 1) seeking to have the treaty amended to address the chief U.S. concerns; 2) working to head off ratification by other states, thereby preventing the court’s establishment, and 3) in the words of Ambassador David J. Scheffer, who led the U.S. delegation in Rome, actively opposing the ICC “in terms of the actual operation of the court once it’s established.”

If the administration decides to pursue the first option, it will need to demonstrate a better grasp of the prevailing political climate than it has so far. One of the United States’ most striking failings in Rome was the extent its policy did not realize the other states’ determination to create the court as envisioned in the treaty--preferably with U.S. support, but if necessary without it.

If the U.S. has any hope of persuading other countries to reconsider the treaty, it must put forth modest proposals. Above all, it must resist the temptation to advance even more unrealistic positions than those defeated in Rome. Nor will the administration have any greater prospect of success in an amendment effort unless President Bill Clinton is prepared to commit to signing the treaty.

On this crucial point, Helms has again undercut the administration by proclaiming that, “this treaty is irreparably flawed,” and therefore cannot be fixed by the sort of amendment process the administration is contemplating.

As for the second option--working to head off ratification by other states--the United States risks further alienating its allies through strong-arm tactics that are sure to backfire.

The third option, favored by Helms, is the most self-defeating. When pressed during Senate hearings about the likelihood that the court will be created, Scheffer ranked the prospect 9.5 on a scale of 10. So it is plainly in the interest of the United States to ensure that it evolves into an effective and legitimate body. After all, one aspect of the ICC treaty that the administration does embrace is its provision for referrals to the court by the U.N. Security Council.

Further, even U.S. officials who opposed the final text in Rome concede that if the ICC operates as the treaty contemplates, U.S. soldiers will never be prosecuted before the court. The U.S. government has nonetheless sought an ironclad guarantee because of the specter that the court could fail to conform to its creators’ intent. But it surely cannot be wise policy for the United States to dedicate itself to transforming its worst-case specter into the proverbial self-fulfilling prophecy.*