In  the  waning  days  of  his  presidency,  William  J.  Clinton  authorized  the United  States  signature  of  the  Rome  Treaty  establishing  an  International Criminal  Court  (ICC),  making  the  United  States  the  138th  country  to  sign  the treaty  by  the  December  30th  deadline

Scharf, Michael P.

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The United States and the International Criminal Court: A Recommendation for the Bush Administration

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THE UNITED STATES AND THE INTERNATIONALCRIMINAL COURT: A RECOMMENDATION FORTHE BUSH ADMINISTRATIONMichael P. ScharfI. INTRODUCTION ........................................... 385IH. INFLUENTIAL INSIDER OR HOSTILE OUTSIDER .? . .. . . . . . . . . . . . . 386Ill. A RECOMMENDATION BASED ON REAL POLITICKCONSIDERATIONS ....................................... 388I. INTRODUCTIONIn the waning days of his presidency, William J. Clinton authorized theUnited States signature of the Rome Treaty establishing an InternationalCriminal Court (ICC), making the United States the 138th country to sign thetreaty by the December 30th deadline. According to the ICC Statute, afterDecember 31, 2000, States must accede to the Treaty, which requires fullratification-something that was not likely for the United States in the near termgiven the current level of Senate opposition to the Treaty. While signature isnot the equivalent of ratification, it sets the stage for United States support ofSecurity Council referrals to the International Criminal Court, as well as otherforms of United States cooperation with the Court. In addition, it enables theUnited States to continue to seek additional provisions to protect Americanpersonnel from the court's jurisdiction.Clinton's action drew immediate reaction from Senator Jesse Helms,Chairman of the United States Senate Foreign Relations Committee, who hasbeen one of the treaty's greatest opponents. In a Press Release, Helms stated:"Today's action is a blatant attempt by a lame-duck President to tie the handsof his successor. Well, I have a message for the outgoing President. Thisdecision will not stand. I will make reversing this decision, and protectingAmerica's fighting men and women from the jurisdiction of this internationalkangaroo court, one of my highest priorities in the new Congress."'* Professor of Law and Director of the Center for International Law and Policy, New EnglandSchool of Law; formerly Counsel to the Counter Terrorism Bureau, Attorney Adviser for Law Enforcementand Intelligence (1989-1991), and Attorney Adviser for United Nations Affairs (1991-1993), United StatesDepartment of State, Office of the Legal Adviser.I. Press Release, Helms on Clinton ICC Signature: This Decision Will Not Stand (Dec. 31, 2000)(on file with author).386 ILSA Journal of International & Comparative Law [Vol. 7:385During the 107th Congress, Helms is likely to resurrect the"Servicemembers Protection Act," Senate Bill 2726, which he initiallyintroduced in June 2000. The Act would prohibit any United StatesGovernment cooperation with the ICC, and cut off United States militaryassistance to any country that has ratified the ICC Treaty (with the exception ofmajor United States allies), as long as the United States has not ratified theRome Treaty. Further, the proposed legislation provides that United Statesmilitary personnel must be immunized from ICC jurisdiction before the UnitedStates participates in any United Nations peacekeeping operation. The proposedlegislation also authorizes the President to use all means necessary to releaseany United States or allied personnel detained on behalf of the Court.2II. INFLUENTIAL INSIDER OR HOSTILE OUTSIDER?The inescapable reality for the United States is that the ICC will soon enterinto force with or without United States support. As this is being written, thirtycountries have already ratified the treaty, and 139 have signed it indicating theirintention to ratify.3 Sixty ratifications are necessary to bring it into force. TheSignatories include every other North Atlantic Treaty Organization (NATO)State except for Turkey. Three of the Permanent Members of the SecurityCouncil (France, Russia, and the United Kingdom) have signed it. Both of theUnited States' closest neighbors (Mexico and Canada) have signed it. And evenIsrael, which had been the only Western country to join the United States invoting against the ICC Treaty in Rome in 1998, later changed its position andsigned the Treaty.4The question facing the Bush Administration, then, is whether its interestsare better served by playing the role of a hostile outsider (as embodied in JesseHelms' "American Servicemembers Protection Act") or by playing the role ofan influential insider (as it has done for example with the Yugoslavia Tribunal).In deciding on a course of action, the Bush Administration must recognize theconsequences that would flow from the hostile approach.First, the hostile approach would transform American exceptionalism intounilateralism and/or isolationism by preventing the United States fromparticipating in United Nations peacekeeping operations and cutting off aid tomany countries vital to United States national security. Further, overtopposition to the ICC would erode the moral legitimacy of the United States,which has historically been as important to achieving United States foreign2. See American Servicemembers' Protection Act of 2000, H.R. 4654, 106th Cong. §2(5) (1999).3. Rome iCC Treaty Conference: Rome Statute Signature and Ratification Chart, athttp://www.igc.org/icc (last visited Mar. 17, 2001).4. Nomi Bar-Yaacov, In Change of Heart, Israel Considers Signing War Crimes Treaty, AGENCEFRANCE PRESSE, Aug. 20, 2000, at International News.Scharfpolicy goals as military and economic might. Perversely, the hostile approachmay even turn the United States into a safe haven for international warcriminals, since the United States would be prevented from surrendering themdirectly to the ICC or indirectly to another country which would surrender themto the ICC.Second, the United States would be prevented from being able to takeadvantage of the very real benefits of an ICC. The experience with theYugoslavia Tribunal has shown that, even absent arrests, an internationalindictment has the effect of isolating rogue leaders, strengthening domesticopposition, and increasing international support for sanctions and even use offorce. The United States has recognized these benefits in pushing for thesubsequent creation of the ad hoc tribunals for Rwanda and Sierra Leone, aswell as proposing the establishment of tribunals for Cambodia and Iraq. But theestablishment of the ICC will signal the end of the era of ad hoc tribunals.Under the hostile approach, when the next Rwanda-like situation occurs, theUnited States will not be able to employ the very useful tool of internationalcriminal justice.The United States opponents of the ICC have suggested that withoutUnited States support, the ICC is destined to be impotent because it will lack thepower of the Security Council to enforce its arrest orders. But as the ad hocTribunals for Rwanda and Sierra Leone indicate, in most cases where an ICCis needed, the perpetrators are no longer in power and are in the custody of anew government or nearby states which are perfectly willing to hand them overto an ICC absent Security Council action. Moreover, the Security Council hasbeen prevented (by Russian veto threats) from taking any action to imposesanctions on States that have not cooperated with the Yugoslavia Tribunaldespite repeated pleas from the Tribunal's Prosecutor and Judges that it do so.Indeed, in the Yugoslavia context, where the perpetrators were still in powerwhen the Tribunal was established, it was not action by the Security Council,but rather the withholding of international loans that have induced Croatia andSerbia to hand over two dozen indictees. This indicates that, unlike the Leagueof Nations (which United States opponents of the ICC have frequently referredto in this context), the ICC is likely to be a thriving institution even withoutUnited States participation. In other words, the United States may actually needthe ICC more than the ICC needs the United States.The third problem with the hostile approach is that the United Statesachieves no real protection from the ICC by remaining outside the ICC regime.This is because Article 12 of the Rome Statute empowers the ICC to exercisejurisdiction over nationals of non-party States who commit crimes in theterritory of State Parties. Opponents of the ICC have attempted to negate thisproblem by arguing that international law prohibits the ICC from exercising2001]388 ILSA Journal of International & Comparative Law [Vol. 7:385jurisdiction over the nationals of non-parties.5 In a lengthy article in Law andContemporary Problems, I provide a detailed critique of this legal argument,pointing out that it is not supported by the historic record or guidingprecedents.6 But far more important than what I have to say is the fact that therepresentatives at the ICC Prep. Con. have rejected the argument, indicating thatthe ICC Assembly of State Parties and the ICC itself are extremely unlikely toaccept it.If United States officials can be indicted by the ICC whether or not theUnited States is a party to the Rome Treaty, then the United States preservesvery little by remaining outside the treaty regime, and could protect itself betterby signing the treaty. This has been proven to be the case with the YugoslaviaTribunal, which the United States has supported with contributions exceeding$15 million annually, the loan of top-ranking investigators and lawyers from thefederal government, the support of troops to permit the safe exhumation of massgraves, and even the provision of U-2 surveillance photographs to locate theplaces where Serb authorities had tried to hide the evidence of its wrongdoing.7This policy bore fruit when the International Prosecutor opened aninvestigation into allegations of war crimes committed by NATO during the1999 Kosovo intervention. Despite the briefs and reports of reputable humanrights organizations arguing that NATO had committed breaches ofinternational humanitarian law, on June 8, 2000 the International Prosecutorissued a report concluding that charges against NATO personnel were notwarranted. 8 I am not suggesting that the United States co-opted the YugoslaviaTribunal, but when dealing with close calls regarding application ofinternational humanitarian law it is obviously better to have a sympatheticProsecutor and Court than a hostile one.Il. A RECOMMENDATION BASED ON REAL POLMCK CONSIDERATIONSI served as Attorney-Adviser for Law Enforcement and Intelligence andAttorney-Adviser for United Nations Affairs at the State Department under thefirst President Bush. Unlike much of the commentary on both sides of thisissue, which is clouded by emotionalism and idealism, I have sought here to5. See American Servicemembers' Protection Act of 2000, H.R. 4654,106th Cong. § 2(5), at pmbl.(1999).6. Michael P. Scharf, The ICC's Jurisdiction over the Nationals of Non-Party States: A Critiqueof the U.S. Position, 63 LAW & CONTEMP. PROBS. (forthcoming 2000).7. Ruth Wedgwood, Improve the International Criminal Court, at http:lwww.foreignrelations.org/public/pubs/CriminalCourtCPI.html (last visited Mar. 17, 2001).8. Final Report to the Prosecutor by the Committee Established to Review the NATO BombingCampaign Against the Federal Republic of Yugoslavia (2000) (on file with the author).provide a detached risk-benefit analysis of the foreign policy and nationalsecurity consequences of the question facing the new Administration.9The risks to United States servicemembers presented by the ICC have beengreatly exaggerated, while the safeguards contained in the ICC Treaty have beenseriously underrated. But to the extent that such fears are valid, United Statesopposition to the ICC will only increase the likelihood that the ICC will be morehostile than sympathetic to United States positions. And, ironically, byopposing the Court, the United States would likely engender more internationalhostility toward United States foreign policy than could result from anindictment by the Court. Thus, whether or not the United States is able toachieve additional safeguards to prevent the ICC from exercising jurisdictionover United States personnel, it will be in the interests of United States nationalsecurity and foreign policy to support, rather than oppose, the ICC. This doesnot require immediate ratification. Perhaps it is better to let the Court proveitself over a period of years before sending the treaty to the Senate. But whenthe next Rwanda-like situation comes along, the Bush Administration will findvalue in having the option of Security Council referral to the ICC in its arsenalof foreign policy responses.9. For a more detailed analysis, see THE UNITED STATES AND THE INTERNATIONAL CRIMINALCOuRT: NATIONAL SECURITY AND INTERNATIONAL LAW (Sewall and Kaysen, eds., 2000) (A project of theAmerican Academy of Arts and Sciences of which the author served as Co-Director).Scharf2001]

The United States And The International Criminal Court: A recommendation For The Bush Administration

Case Western Reserve University School of Law

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The United States And The International Criminal Court: A recommendation For The Bush Administration

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