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UN: International Justice Series -- Permanent Court Moves Ahead Despite U.S. Opposition (Part 5)

  • Robert McMahon

Three years after the adoption of the statute on the creation of a permanent International Criminal Court, the number of ratifying states continues to grow. The nations supporting the court say a forum with universal jurisdiction is the best way to ensure human rights law is protected. But continuing opposition from the U.S. government threatens to weaken the court. Experts close to the process discuss the court with RFE/RL's Robert McMahon in the fifth and final part of our series on international justice issues.

United Nations, 11 September 2001 (RFE/RL) -- Of the 37 countries that have ratified the treaty on a permanent International Criminal Court, or ICC, most say they willingly accept the possible surrender of sovereignty in exchange for the court's role in protecting human rights.

These states and nearly 100 others signed on to the 1998 statute on establishing the court. It was devised at the end of a decade in which two ad hoc courts were formed to investigate war crimes and crimes against humanity in the former Yugoslavia and Rwanda.

But one of the last and most important signatories -- the United States -- is also the most reluctant. The United States signed the treaty on one of the final days of the presidency of Bill Clinton in December 2000. The administration of President George W. Bush has said it does not intend to send the treaty to the U.S. Senate for ratification.

Clinton's administration, in part due to pressure from the U.S. Defense Department, had sought changes in the court so that it would not leave U.S. soldiers vulnerable to politically motivated prosecutions. Those concerns remain and among some prominent U.S. lawmakers, opposition has intensified. U.S. Senator Jesse Helms, a senior member of the Senate Foreign Relations Committee, and others have introduced legislation to ban cooperation with the court and give the U.S. president the authority to send troops, if necessary, to release U.S. soldiers who may be taken into custody.

The Bush administration is holding a high-level policy review on the court. A State Department spokesman, Michael Mattler, tells RFE/RL it has not yet decided on whether to attend a meeting at UN headquarters later this month to review the financial rules for the court. Mattler repeated the U.S. reservations about the treaty:

"The administration has fundamental concerns with the International Criminal Court treaty and doesn't intend to submit it to the Senate for advise and consent for ratification. And among our concerns is that the treaty seeks to exercise jurisdiction over non-party nationals."

Clinton's ambassador-at-large for war crimes, David Scheffer, was the chief U.S. delegate at talks setting up the court and its rules of procedure. He says that the decision to sign by the Clinton administration was a "good faith expression" of Washington's willingness to work out remaining differences on the court and support its main aims.

Scheffer, now a senior fellow at the U.S. Institute of Peace, says he's hopeful the Bush administration will continue to work along with other signatories on shaping the court and may one day choose to join it. He says the court's objectives -- ensuring international justice on major crimes -- are compatible with U.S. foreign policy goals.

"If you approach the issue of the International Criminal Court with a very narrow perspective of, 'Will this in any possible way expose a single American citizen to international justice,' then I think that sort of anemic approach to the problem will do us far more harm in the future and frankly undermine the very interests of Americans who might be exposed to this process, than if we were to approach this in a constructive manner as a signatory state."

Diplomats from states supporting the court say a number of provisions have been made to the statute to ease the U.S. concerns about violation of sovereignty. They point out that the court will only assert jurisdiction when states are unwilling or unable to prosecute nationals in their own courts.

The permanent international court is a court of last resort, they say, whose presence should encourage national governments and courts to investigate and prosecute serious crimes on their own, something the United States is already expected to do.

However, critics of the ICC, such as Henry Kissinger, a former U.S. secretary of state, considers this to be part of the problem. Precisely because the ICC is the court of last resort, it retains the ultimate authority to decide whether national courts have done their job adequately. And if it decides that they have not, Kissinger says, it can reassert its jurisdiction.

The United States has often tried members of its armed forces in military courts when they have been accused of criminal activity. But with its large deployment of military worldwide, it remains concerned about the exposure of U.S. personnel to politically motivated charges before the ICC.

A number of countries have warned they will oppose further changes to the Rome treaty to appease any one country.

The international tribunal can be formed when 60 countries ratify the treaty, a level that is expected to be reached sometime next year. Nearly one-third of the 37 countries that have ratified the treaty so far are Western European states. They include France, the first permanent Security Council member to ratify, and many European Union states.

The Netherlands, the most recent country to ratify, will host the ICC in The Hague, where construction on court buildings is due to begin shortly. Dutch Foreign Ministry spokesman Frank de Bruin told RFE/RL that his country's support of the court is consistent with its long tradition of promoting international law:

"We have found that the international rules of, especially humanitarian law, should be enforced as generally and as precisely as possible. And we have found that doing that in a general way is [advanced by] international courts with universal or almost universal jurisdiction."

Croatia's ratification of the treaty this past May came two months ahead of a government crisis over its decision to cooperate with the international criminal tribunal for the former Yugoslavia. The Hague tribunal has indicted some Croat military officers for alleged war crimes against Serbs, but many Croats reject the notion of wrongdoing in their war with the Serbs.

Croatia's ambassador to the United Nations, Ivan Simonovic, says that ratifying the Rome statute was relatively easy for his country. Simonovic, a delegate to the negotiations on the Rome statute, says in comparison with The Hague tribunal, the proposed international court has less demanding rules of procedure for Croatia.

Simonovic also says the permanent international court was more acceptable to Croats because its jurisdiction will be accepted by many nations. The tribunal for the former Yugoslavia, he says, is sometimes viewed as dispensing unequal justice:

"What Croatia wanted to show with that ratification of the Rome statute and signing of the Rome statute is that we are willing to reduce our own sovereignty for the sake of international protection of the most basic human rights if the other countries choose to do the same."

Simonovic says because of its cooperation with The Hague tribunal, Croatia has already begun to make changes to its judicial system so that it can process some of the serious crimes envisaged by the ICC.

The Croat ambassador says he understands the reluctance of the United States, as the world's superpower, to hand over part of its sovereignty to an international court. But he said a U.S. decision to join the court would add to its moral authority in the international community and advance the efforts of the court.

"I think that it's something that is frightening that we are willingly restraining a part of our sovereignty. Perhaps it's even more challenging for a superpower like the United States, but then it really does lead us somewhere."

Preliminary estimates by the United Nations show the ICC would need more than $15 million in its first year if no cases were referred. If the court held six trials for cases referred by a state or the UN Security Council, its costs would be about $30 million.

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