Statement of Jerry Fowler Legislative Counsel, Lawyers Committee for Human Rights


Presented before the Congressional Human Rights Caucus Briefing on Negotiations to Create a Permanent International Criminal Court May 12, 1998

It is an honor and a privilege to speak to the Congressional Human Rights Caucus todayabout the effort to create a permanent International Criminal Court (ICC), which would have jurisdiction over genocide, crimes against humanity and serious war crimes for those cases where no national judicial system is available.

Negotiations for an ICC are rapidly moving toward a diplomatic conference this June that may result in a final ICC treaty. The Caucus and its co-chairs, Mr. Porter and Mr. Lantos, have provided such valuable leadership on so many human rights issues over the years. And the ICC is one of the most important human rights issues now facing the United States and the world, because the outcome of the Rome conference could shape the world's response to the worst human rights abuses for generations to come.

The United States has shown great leadership in promoting the cause of internationaljustice. It has played a key role in supporting the work of the Yugoslavia and Rwanda war crimes tribunals. Ambassador David Scheffer, the first senior State Department official dedicated solely to war crimes issues, has been a strong proponent of bringing international criminals to justice.

And the international community was catalyzed last fall when President Clinton called for the creation, before the century ends, of an ICC "[t]o punish those responsible for crimes against humanity and to promote justice so that peace endures." President Clinton reiterated this call when he visited Rwanda earlier this year.

But I must be forthright in expressing concern that, despite this commitment to international justice, the Administration has stopped short of supporting an independent ICC on several crucial issues. The Lawyers Committee is concerned that the Administration might emerge at Rome as an obstacle to an effective court. If so, it will find itself out of step with key allies and the non-governmental human rights community.

The most unfortunate aspect of such a possibility is that it is not necessary in order to protect U.S. interests. The present positions stem from a legitimate concern that the ICC not be a forum for politically motivated prosecutions of U.S. citizens. This is a concern widely shared by the Court's strongest supporters. Safeguards already proposed for inclusion in the treaty -- especially the principle that the ICC will only complement national judicial systems -- will protect against inappropriate prosecutions without sacrificing the Court's independence and effectiveness.

I strongly urge the members of the Caucus to encourage the Administration to reconsider its positions on the Court's independence.


Background

In the 50 years since the Nuremberg trials, genocide, crimes against humanity and serious war crimes have been committed in many parts of the world. The perpetrators usually escaped justice because there was no court able and willing to hold them accountable. But the world community is entering the final stages of work to create a permanent ICC. The Court will have jurisdiction to prosecute those suspected of the most serious international crimes whenever a national government is unable or unwilling to do so.

This June a diplomatic conference will convene in Rome to finalize the ICC statute and adopt a convention establishing the Court. Working from a 1994 draft prepared by the International Law Commission, a preparatory committee open to all 185 members of the United Nations has worked hard to negotiate the details of the Court.

There is now widespread consensus that a court will be established. But the question is whether it will be an effective, fair and credible court.


Why an ICC Is Needed

Experience has demonstrated that gross human rights violators, especially those in positions of authority, are rarely called to account by their own governments. The U.N. Security Council established the ad hoc tribunal for the former Yugoslavia precisely because domestic authorities were unlikely to punish those responsible for atrocities. Even when the political will

exists, as in Rwanda, fair prosecution is often impossible because conflicts have disrupted or even destroyed a country's judicial system.

An ICC would not be a panacea for gross human rights violations. But it would provide a forum to prosecute the most heinous international crimes when national systems are unable or unwilling to do so. It would serve to deter gross human rights violators, by confronting them with the threat of punishment. It would offer redress to victims where national courts cannot provide it. It would strengthen peace and end the cycle of violence, by offering justice as analternative to revenge. And it would contribute to the process of reconciliation, by replacing the stigma of collective guilt with the catharsis of individual accountability. But unlike the ad hoc tribunals, which can raise questions of selective justice and political motivations, the legitimacy of a permanent ICC created by treaty by U.N. member nations would not be open to challenge. The Court would have the same mandate wherever the crimes under its jurisdiction are committed.

And we need to be clear: The ICC is in the national interest of the United States. A court capable of effectively stepping in when national judicial systems are unwilling or unable to prosecute those who commit genocide, crimes against humanity or serious war crimes will help deter those crimes. Increased deterrence will lessen the chances that U.S. military personnel will need to be deployed in response to future Bosnias. And an effective court will help deter the commission of war crimes against U.S. military personnel when they are deployed overseas.


Critical Issues Of Independence and Effectiveness

Despite President Clinton's strong commitment to the ICC, the Administration has stopped short of supporting an independent court on three crucial issues that go to the heart of whether the Court will be effective.

First, the Administration has advocated requiring Security Council approval before the Court can look into any situation with which the Council is dealing. That requirement would seriously compromise the Court's independence. The Security Council is a political body, made even more political by the veto power of the five permanent members. A Security Council role as gatekeeper to the Court's docket would undermine the Court's credibility by creating at least the perception of inappropriate political influence. Moreover, the requirement could hamstring the Court in practice, because any permanent member of the Security Council singlehandedly could frustrate international justice with its veto.

A proposal put forth at last August's preparatory committee meeting by Singapore, and which has the support of a large number nations, would loosen the Security Council's control over the Court by requiring the Security Council to vote affirmatively to remove a situation from the Court's jurisdiction. To date, the Administration has rejected even this proposal.

Second, the Administration has opposed allowing the Prosecutor to launch his orher own preliminary investigations "ex officio," insisting that only referrals by the Security Council or by individual governments trigger the Court's jurisdiction. Because the Security Council is inherently political, its involvement in every decision to investigate or prosecute will make the process unnecessarily delayed and cumbersome. In addition, the veto power of the five permanent members will derail many legitimate prosecutions for political reasons. State referral also is inherently flawed. Complaints by states may in appearance, if not in fact, be politically motivated. By the same token, political considerations likely will forestall many otherwise legitimate complaints; governments simply will not bring complaints involving another state's nationals if doing so might interfere with diplomatic and economic relations or might inviteretaliatory complaints. In fact, reliance on state referrals might have the undesirable (and perverse) result that the only complaints lodged with the Court will be those most strongly motivated by politics rather than by the demands of justice.

Third, the Administration has reserved its position on proposals that many prosecutions only be allowed to go forward if certain states, such as the state of the suspect's nationality, consent to the Court's jurisdiction. A consent requirement would cripple the Court by in many cases giving an effective veto over prosecutions to governments that are actually under the control of the suspect or his allies. To allow states that have been destabilized by the very crimes under investigation to frustrate ICC prosecutions would be a serious mistake.


Safeguards Against Inappropriate Prosecutions

A fair and effective ICC is in the national interest, as the President has recognized on a number of occasions. But the Administration positions described above are motivated by a concern that the Court might become a tool for politically motivated prosecutions of Americans, especially military personnel deployed abroad. This concern is legitimate. In seeking to address it, however, the Administration should not sacrifice the national interest in an effective court. And in fact, these interests are not mutually exclusive. Four important safeguards already in the draft treaty or under discussion would protect against inappropriate investigations of U.S. citizens without sacrificing the Court's independence.

First, the subject matter jurisdiction of the Court should be limited to the most egregious international crimes: genocide, crimes against humanity and serious war crimes.

This limited jurisdiction necessarily will restrict the investigations that the Prosecutor can undertake to claims that those crimes have been committed. Nothing in the Court's limited jurisdiction would permit the prosecutor to investigate allegations of other types of wrongdoing.

Second, and perhaps most important, the ICC will not be the primary judicial institution addressing those serious crimes. Rather, under the principle of "complementarity," which is already broadly agreed to by the countries participating in the preparatory committee negotiations, the Court will be empowered to act only when national judicial systems are not available to do so. Thus, a case will be inadmissible before the ICC whenever a state is exercising, or has exercised, its national jurisdiction over a case. By the terms of the proposed statue, the ICC will have not have jurisdiction when a national investigation is taking place or has occurred. This means that whenever a State does carry out its obligation to investigate, even if it decides not to prosecute, the ICC cannot intercede. The only exceptions are when a state intentionally tries to avoid its international obligations by willingly shielding a criminal from responsibility, as is the case now with many of the indicted war criminals in the former Yugoslavia, or where the judicial system has collapsed, as in the case in Rwanda. Quite simply, the Court is neither designed nor intended to supplant independent and effective judicial systems such as the U.S. military and civilian courts.

Third, judicial oversight will ensure prosecutorial accountability. The draft treaty already provides for early judicial review of both the merits of a case and whether a national judicial system is available. If necessary, these oversight provisions can be strengthened further.

Finally, safeguards in the election and removal of the Prosecutor and Deputy Prosecutor provide accountability. The present draft requires that they be "persons of high moral character." This requirement could be strengthened by explicitly requiring impartiality and integrity. The natural counterpart to election of the Prosecutor and Deputy Prosecutors is their removal, which the treaty could allow by vote of a majority of states parties. Political bias -- especially if impartiality is an explicit qualification -- could be established as a cause for removal.

The United States has a national interest in an effective ICC as well as an interest in protecting against inappropriate prosecutions before such a court. These interests are not mutually exclusive. As the negotiations to create the ICC enter their final stages, the Administration should not unnecessarily sacrifice the national interest in an effective court in the mistaken belief that an independent court might act irresponsibly. The safeguards that I outlined above -- especially the principle of complementarity -- will preserve the independence of the Court while protecting against inappropriate prosecutions.

 


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