Washington, 23 July 1998 (RFE/RL) -- A lawyer for an international human rights organization says the U.S. has seriously damaged its reputation abroad by declining to support the creation of a United Nations International Criminal Court which would essentially try war crimes.
Dinah Pokempner, Deputy General Counsel for Human Rights Watch, told RFE/RL that the U.S. had made a mistake by taking an "uncompromising stand" on how much power and authority the court could have and by allying itself with such countries as Iraq, Libya, Algeria and Cuba who also opposed the court's creation.
The UN International Criminal Court was created at a UN conference last week in Rome, despite strident U.S. objections. It fulfilled a half-century dream of many nations to establish a supranational court which would investigate and possibly prosecute some of the world's most heinous crimes.
The court was established in a secret ballot, with 120 nations voting in favor, seven voting against and 21 abstaining. The U.S. openly acknowledged it had voted no, and other countries who had voiced strong opposition to the court such as Iraq, China, Israel, Qatar and Libya, are also believed to have voted against it.
On the other hand, virtually all the European countries including, Great Britain, Germany and France -- some of the U.S.'s closest allies -- voted in favor of the court. Additionally, countries such as South Korea, Canada, Australia, Argentina, Chile, the Philippines and South Africa also supported the court.
The court will come into existence once 60 countries ratify the treaty. It will have a full-time prosecutor and will focus specifically on three areas -- crimes against humanity, war crimes and genocide. The court will have the power to launch investigations and issue criminal indictments even against countries who are not signatories to the treaty -- a major issue of contention with the U.S.
Pokempner says that the court will be unique because unlike the ad hoc tribunals formed by the UN Security Council, this court will be permanent and, to a great degree, independent. She says the court will not require a consensus in the Security Council to take up a particular case and will be able to accept cases that have been referred by individual states, non-governmental agencies and even individuals themselves.
U.S. State Department spokesman James Rubin told reporters on Monday that America was deeply saddened by the "unfortunate rush to judgment" by the nations in Rome who seemed "more anxious in making a point than making a difference."
Rubin said the U.S. has long supported the creation of a "fair and properly constituted" international criminal court. But he says the current court will be "deeply flawed."
Rubin says the U.S. objected to the court for three basic reasons.
First, he says, once the treaty comes into force, it would extend the court's jurisdiction over nationals of countries that are not party to the treaty. He says this is unprecedented in international law.
Rubin says: "The nation-state is the fundamental unit in the international system, and international law has not before seen a treaty try to impose itself on those who have not signed it."
Rubin also says the provision would put U.S. armed forces operating overseas at risk of facing prosecution by the court.
Explained Rubin: "Not only would this violate the most fundamental principle of treaty law, it could inhibit the ability of the U.S. to meet alliance obligations and participate in multinational peacekeeping operations. In short, it could let U.S. forces be subject to politically motivated or ill-considered or unjustified prosecutions."
Second, Rubin says the U.S. was very concerned about the treaty's failure to give nations the opportunity to test the court's experience before becoming subject to its jurisdiction.
Rubin says America's position was to allow countries to be immune from prosecution of war crimes and crimes against humanity for ten years, but accept automatic jurisdiction with respect to genocide. He adds that this would have allowed many more states to immediately support the court, while allowing those with extensive international peacekeeping responsibilities and security obligations, such as the U.S., to see how the court proceeded on such issues.
Rubin says as it stands now, the court will have a double standard. He says countries who sign the treaty now can avoid prosecution of its nationals for war crimes for the first seven years, while nations that do not sign the treaty could face immediate prosecution.
Rubin explains: "A known human rights violator could sign the treaty, opt out of war crimes, and yet seek to prosecute the U.S. when its peacekeeping forces seek to enforce peace and security in that particular country."
Third, Rubin says the U.S. objected to the provision which allows the court's prosecutor to initiate investigations even when no state party seeks one. Rubin says this means the court will be "deluged with complaints from well-meaning individuals and organizations that will want the court to redress every wrong in the world."
Rubin adds that he believes this provision will turn the court into little more than a "human rights ombudsman" and limit its ability to investigate more serious crimes.
Rubin's concerns are echoed by two former lawyers for the U.S. Justice Department, Lee Casey and David Rivkin. In an article they wrote for Commentary magazine in May, the two said that the structure of the international court is vastly different than the American legal system and actually violates several basic principles of the U.S. Constitution.
For example, Casey and Rivkin say that trials at the international court will not be by jury. Punishment, up to a maximum of life in prison, will be decided solely by the court, as will requests for clemency and parole. The only venue for appeal will be the appellate division of the court itself. There will be no recourse from its decisions, and no ability to overturn the law it sets. Moreover, they say, it is highly questionable whether the U.S. Constitution even allows the American government to delegate its judicial authority.
Say Casey and Rivkin: "Though the court will be empowered to indict and try American citizens, its procedures will fail to provide American defendants who come before it the basic guarantees they enjoy under the Constitution's Bill of Rights."
But Pokempner argues many of these complaints are not valid.
In response to Rubin's complaint that the court's jurisdiction will apply to all nations -- regardless of whether or not they sign the treaty -- she says it is not unprecedented for international law to apply only to states that consent to it She says that there has long been in place the practice of "customary international law" which is a body of legal principles that are considered binding on all nations, regardless of whether they signed specific treaties.
An example of customary law, she says, is that all nations, whether they agree or not, are already bound to prosecute genocide, crimes against humanity, and grave breaches of the Geneva Convention on human rights. She says the court will not impose any new or additional obligation on nations around the world. What the new court will do, she says, is provide a mechanism for enforcement of the basic norms of decency that have not existed before.
Pokempner also says that the U.S. argument that its military forces are at risk is a weak one. She says there is a provision in place that prevents the court from taking up cases that are already under investigation by a national jurisdiction. Therefore, she says, in the event that an American serviceman is accused of a crime -- if a U.S. military court has already begun an investigation on the matter, the court would be pre-empted from launching an investigation of its own.
She adds: "Moreover, we have to understand that the types of actions that can get an individual into trouble are rather extreme actions. We are talking about war crimes that, first of all, must take place in a situation of armed conflict, or crimes against humanity which are committed on a mass scale, or genocide -- the attempt to destroy an entire people. So, we are not talking about isolated incidents or the types of mishaps that typically befall servicemen who are posted in various European posts or even in most peacekeeping operations."
But Joseph Montville, the Director of the Preventive Diplomacy Program at the Center for Strategic and International Studies in Washington, told RFE/RL that the U.S.'s position on many points in regards to the court is actually quite understandable to those familiar with American politics.
Montville, a former diplomat, says Rubin's statement that the formation of the court was a "rush to judgment" is true to some extent because the issue received very little media attention in America and thus, was not played out in the court of public opinion. This is particularly important to Americans, says Montville, because public opinion greatly affects the mindset of U.S. legislators.
Montville also says the timing was bad for America because U.S. President Bill Clinton is currently engaged in a "combative" political situation with the U.S. Congress. Montville says that after Senator Jesse Helms (R-North Carolina), chairman of the U.S. Senate Foreign Relations Committee, announced that even if the U.S. signed the treaty it would not be ratified by his committee, the effort was essentially a lost cause. Helms declared that under no circumstances would he permit American citizens or U.S. foreign policy to be submitted the judgment of the world.
Montville says that Clinton and the administration then had to decide how much effort it was willing to expend to overcome Helm's firm resistance to the creation of the court. He says that Clinton's hands were already full trying to push legislation through Congress to pay America's dues to the UN -- another issue vigorously opposed by Senator Helms -- and trying to get increased U.S. funding for the International Monetary Fund.
Another issue of importance for the international community to remember, says Montville, is that the very concept of the court is seen as a fundamental challenge to America's sovereignty, political culture and psychology.
Explains Montville: "There are political obstacles that go back very deep in our history -- that go beyond this congress and this president -- about submitting the U.S. to any outside authority....We are not all that mature in many ways. It is going to be a delicate transition to get our participation in international institutions that we don't control, yet still believe in. It is going to take a while for us to feel comfortable in that situation."
Montville says that as a superpower, the U.S. has enormous responsibilities that are not necessarily shared by other countries, even America's allies.
Montville says: "This doesn't necessarily endear the U.S. to the rest of the world, but it reflects our power responsibility, some of the limitations of our political history and culture, and the challenges to maturing a form of leadership that the world really requires." He says the U.S. is just at the beginning of what will likely be a long engagement with the idea of an international court over which it has little or no control. But Montville says that in the end, U.S. isolation on this issue will not last, and the international community will need to bring about American support in order to build effective institutions that will advance the concept of rule of law and human rights around the globe.