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
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
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.
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.
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
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.
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
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
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