Remarks as delivered
The topic I have been asked to speak on is the United States view of
the role of treaties. I thought I would use the International Criminal
Court (ICC)as a case study.
For a number of reasons, the United States decided that the ICC had
unacceptable consequences for our national sovereignty. Specifically,
the ICC is an organization whose precepts go against fundamental
American notions of sovereignty, checks and balances, and national
independence. It is an agreement that is harmful to the national
interests of the United States, and harmful to our presence abroad.
However, it is a misconception that the U.S. is out to undermine the
ICC. To the contrary, we are determined to work with States Parties,
utilizing a mechanism prescribed within the Rome Statute, to find an
acceptable solution to our differences.
U.S. military forces and civilian personnel and private citizens are
currently active in peacekeeping and humanitarian missions in almost
100 countries at any given time. It is essential that we remain
steadfast in preserving the independence and flexibility that America
needs to defend our national interests around the world. As President
Bush said,
The United States cooperates with many other nations to keep the
peace, but we will not submit American troops to prosecutors and
judges whose jurisdiction we do not accept. Every person who
serves under the American flag will answer to his or her own
superiors and to military law, not to the rulings of an
unaccountable International Criminal Court.
So in order to protect our citizens, we are in the process of
negotiating bilateral agreements with the largest possible number of
states, including non-Parties. These Article 98 agreements, as they are
called, provide American citizens with essential protection against the
Court s purported jurisdiction claims, and allow us to remain engaged
internationally with our friends and allies.
In the eyes of its supporters, the ICC is simply an overdue addition to
the family of international organizations, an evolutionary step ahead
of the Nuremberg tribunal, and the next logical institutional
development over the ad hoc war crimes courts for the Former Yugoslavia
and Rwanda. The Statute of Rome establishes both substantive principles
of international law and creates new institutions and procedures to
adjudicate these principles. The Statute confers jurisdiction on the
ICC over four crimes: genocide, crimes against humanity, war crimes,
and the crime of aggression. The Court s jurisdiction is "automatic,"
applicable to covered individuals accused of crimes under the Statute
regardless of whether their governments have ratified it or consent to
such jurisdiction. Particularly important is the independent
Prosecutor, who is responsible for conducting investigations and
prosecutions before the Court. The Prosecutor may initiate
investigations based on referrals by States Parties, or on the basis of
information that he or she otherwise obtains.
So described, one might assume that the ICC is simply a further step in
the orderly march toward the peaceful settlement of international
disputes, sought since time immemorial. But in several respects, the
court is poised to assert authority over nation states, and to promote
its prosecution over alternative methods for dealing with the worst
criminal offenses.
The United States will regard as illegitimate any attempts to bring
American citizens under its jurisdiction. The ICC does not fit into a
coherent international "constitutional" design that delineates clearly
how laws are made, adjudicated or enforced, subject to popular
accountability and structured to protect liberty. There is no such
design. Instead, the Court and the Prosecutor are simply "out there"
in
the international system. Requiring the United States to be bound by
this treaty, with its unaccountable Prosecutor, is clearly inconsistent
with American standards of constitutionalism and the standards for
imposing international requirements.
The Court s flaws are basically two-fold, substantive, and structural.
As to the former, the ICC s authority is vague and excessively elastic.
This is most emphatically not a Court of limited jurisdiction. Crimes
can be added subsequently that go beyond those included in the Rome
Statute. Parties to the Statute are subject to these subsequently-added
crimes only if they affirmatively accept them, but the Statute purports
automatically to bind non-parties, such as the United States, to any
such new crimes. It is neither reasonable nor fair that these crimes
would apply to a greater extent to states that have not agreed to the
terms of the Rome statute than to those that have.
Numerous prospective "crimes" were suggested at Rome and commanded
wide
support from participating nations. This includes the crime of
"aggression," which was included in the Statute, but not defined.
Although frequently easy to identify, "aggression" can at times be
something in the eye of the beholder. For example, Israel justifiably
feared in Rome that certain actions, such as its initial use of force
in the Six Day War, would be perceived as illegitimate preemptive
strikes that almost certainly would have provoked proceedings against
top Israeli officials. Moreover, there seems little doubt that Israel
will be the target of a complaint in the ICC concerning conditions and
practices by the Israeli military in the West Bank and Gaza. Israel
recently decided to declare its intention not to become a party to the
ICC or to be bound by the Statute s obligations.
A fair reading of the treaty leaves one unable to answer with
confidence whether the United States would now be accused of war crimes
for legitimate but controversial uses of force to protect world peace.
No U.S. President or his advisors could be assured that he or she would
be unequivocally safe from the charges of criminal liability.
As troubling as the ICC s substantive and jurisdictional problems are,
the problems raised by the Statute s main structures -- the Court and
the Prosecutor -- are still worse. We are considering, in the
Prosecutor, a powerful and necessary element of executive power, the
power of law-enforcement. Never before has the United States been asked
to place any of that power outside the complete control of our national
government without our consent. My concern goes beyond the possibility
that the Prosecutor will target for indictment the isolated U.S.
soldier who violates our own laws and values by allegedly committing a
war crime. My concern is for our country s top civilian and military
leaders, those responsible for our defense and foreign policy. They are
the ones potentially at risk at the hands of the ICC s politically
unaccountable Prosecutor.
Unfortunately, the United States has had considerable experience in the
past two decades with domestic "independent counsels," and that history
argues overwhelmingly against international repetition. Simply
launching massive criminal investigations has an enormous political
impact. Although subsequent indictments and convictions are
unquestionably more serious, a zealous independent Prosecutor can make
dramatic news just by calling witnesses and gathering documents,
without ever bringing formal charges.
Indeed, the supposed "independence" of the Prosecutor and the Court
from "political" pressures (such as the Security Council) is more
a
source of concern than an element of protection. "Independent" bodies
in the UN system have often proven themselves more highly politicized
than some of the explicitly political organs. True political
accountability, by contrast, is almost totally absent from the ICC.
The American concept of separation of powers, imperfect though it is,
reflects our settled belief that liberty is best protected when, to the
maximum extent possible, the various authorities legitimately exercised
by government are placed in separate branches. So structuring the
national government, the Framers believed, would prevent the excessive
accumulation of power in a limited number of hands, thus providing the
greatest protection for individual liberty. Continental European
constitutional structures do not, by and large, reflect a similar set
of beliefs. They do not so thoroughly separate judicial from executive
powers, just as their parliamentary systems do not so thoroughly
separate executive from legislative powers. That, of course, is
entirely Europe s prerogative, and may help to explain why Europeans
appear to be more comfortable with the ICC s structure, which closely
melds prosecutorial and judicial functions in the European fashion.
In addition, our Constitution provides that the discharge of executive
authority will be rendered accountable to the citizenry in two ways.
First, the law-enforcement power is exercised through an elected
President. The President is constitutionally charged with the
responsibility to "take Care that the Laws be faithfully executed,"
and
the constitutional authority of the actual law-enforcers stems directly
from the only elected executive official. Second, Congress, all of
whose members are popularly elected, both through its statute-making
authority, its confirmation authority and through the appropriations
process, exercises significant influence and oversight. Where
necessary, the congressional impeachment power serves as the ultimate
safeguard.
In the ICC s central structures, the Court and Prosecutor, these sorts
of political checks are either greatly attenuated or entirely absent.
They are effectively accountable to no one. The Prosecutor will answer
to no superior executive power, elected or unelected. Nor is there any
legislature anywhere in sight, elected or unelected, in the Statute of
Rome. The Prosecutor is answerable only to the Court, and then only
partially, although the Prosecutor may be removed by Assembly of States
Parties. The Europeans may be comfortable with such a system, but
Americans are not.
By long-standing American principles, the ICC s structure utterly fails
to provide sufficient accountability to warrant vesting the Prosecutor
with the Statute s enormous power of law enforcement. Political
accountability is utterly different from "politicization," which we
can
all agree should form no part of the decisions of either Prosecutor or
Court. Today, however, precisely contrary to the proper alignment, the
ICC has almost no political accountability, and carries an enormous
risk of politicization. Even at this early stage in the Court s
existence, there are concerns that its judicial nomination process is
being influenced by quota systems and back-room deals.
Under the UN Charter, the Security Council has primary responsibility
for the maintenance of international peace and security. The ICC s
efforts could easily conflict with the Council s work. Indeed, the
Statute of Rome substantially minimized the Security Council s role in
ICC affairs. While the Security Council may refer matters to the ICC,
or order it to refrain from commencing or proceeding with an
investigation or prosecution , the Council is precluded from a
meaningful role in the ICC s work. In requiring an affirmative Council
vote to stop a case, the Statute shifts the balance of authority from
the Council to the ICC. Moreover, a veto by a Permanent Member of such
a restraining Council resolution leaves the ICC completely
unsupervised. This attempted marginalization of the Security Council is
a fundamental new problem created by the ICC that will have a tangible
and highly detrimental impact on the conduct of U.S. foreign policy.
The Council now risks having the ICC interfering in its ongoing work,
with all of the attendant confusion between the appropriate roles of
law, politics, and power in settling international disputes. It
seriously undercuts the role of the five Permanent Members of the
Council, and radically dilutes their veto power.
Paradoxically, the danger of the ICC may lie in its potential weakness
rather than its potential strength. The most basic error is the belief
that the ICC will have a substantial deterrent effect against the
perpetration of crimes against humanity. Behind their optimistic
rhetoric, ICC proponents have not a shred of evidence supporting their
deterrence theories. Recent history is filled with cases where even
strong military force or the threat of force failed to deter aggression
or gross abuses of human rights. ICC proponents concede as much when
they cite cases where the "world community" has failed to pay adequate
attention, or failed to intervene in time to prevent genocide or other
crimes against humanity. The new Court and Prosecutor, it is said, will
now guarantee against similar failures.
But deterrence ultimately depends on perceived effectiveness, and the
ICC fails badly on that point. The ICC s authority is far too
attenuated to make the slightest bit of difference either to the war
criminals or to the outside world. In cases where the West in
particular has been unwilling to intervene militarily to prevent crimes
against humanity as they were happening, why will a potential
perpetrator feel deterred by the mere possibility of future legal
action? A weak and distant Court will have no deterrent effect on the
hard men like Pol Pot most likely to commit crimes against humanity.
Why should anyone imagine that bewigged judges in The Hague will
succeed where cold steel has failed? Holding out the prospect of ICC
deterrence to the weak and vulnerable amounts to a cruel joke.
Beyond the issue of deterrence, it is by no means clear that "justice"
as defined by the Court and Prosecutor is always consistent with the
attainable political resolution of serious political and military
disputes. It may be, or it may not be. Human conflict teaches that,
much to the dismay of moralists and legal theoreticians, mortal policy
makers often must make tradeoffs among inconsistent objectives. This
can be a painful and unpleasant realization, confronting us as it does
with the irritating facts of human complexity, contradiction, and
imperfection.
Accumulated experience strongly favors a case-by-case approach,
politically and legally, rather than the inevitable resort to
adjudication. Circumstances differ, and circumstances matter.
Atrocities, whether in international wars or in domestic contexts, are
by definition uniquely horrible in their own times and places.
For precisely that reason, so too are their resolutions unique. When
the time arrives to consider the crimes, that time usually coincides
with events of enormous social and political significance: negotiation
of a peace treaty, restoration of a "legitimate" political regime,
or a
similar milestone. At such momentous times, the crucial issues
typically transcend those of administering justice to those who
committed heinous crimes during the preceding turbulence. The pivotal
questions are clearly political, not legal: How shall the formerly
warring parties live with each other in the future? What efforts shall
be taken to expunge the causes of the previous inhumanity? Can the
truth of what actually happened be established so that succeeding
generations do not make the same mistakes?
One alternative to the ICC is the kind of Truth and Reconciliation
Commission created in South Africa. In the aftermath of apartheid, the
new government faced the difficult task of establishing and
legitimizing truly democratic governmental institutions while dealing
simultaneously with earlier crimes. One option was widespread
prosecutions against the perpetrators of human rights abuses, but the
new government chose a different model. Under the Commission s charter,
alleged offenders came before it and confessed past misdeeds. Assuming
they confessed truthfully, the Commission in effect pardoned them from
prosecution. This approach was intended to make public more of the
truth of the apartheid regime in the most credible fashion, to elicit
admissions of guilt, and then to permit society to move ahead without
the prolonged opening of old wounds that trials, appeals, and endless
recriminations might bring.
I do not argue that the South African approach should be followed
everywhere, or even necessarily that it was correct for South Africa.
But it is certainly fair to conclude that that approach is radically
different from the ICC, which operates through vindication, punishment,
and retribution.
It may be that, in some disputes, neither retribution nor complete
truth-telling is the desired outcome. In many former Communist
countries, citizens are still wrestling with the handling of secret
police activities of the now-defunct regimes. So extensive was the
informing, spying, and compromising in some societies that a tacit
decision was made that the complete opening of secret police and
Communist Party files will either not occur, or will happen with
exquisite slowness over a very long period. In effect, these societies
have chosen "amnesia" because it is simply too difficult for them
to
sort out relative degrees of past wrongs, and because of their desire
to move ahead.
One need not agree with these decisions to respect the complexity of
the moral and political problems they address. Only those completely
certain of their own moral standing, and utterly confident in their
ability to judge the conduct of others in excruciating circumstances
can reject the amnesia alternative out of hand. Invariably insisting on
international adjudication is not necessarily preferable to a course
that the parties to a dispute might themselves agree upon. Indeed, with
a permanent ICC, one can predict that one or more disputants might well
invoke its jurisdiction at a selfishly opportune moment, and thus,
ironically, make an ultimate settlement of their dispute more
complicated or less likely.
Another alternative, of course, is for the parties themselves to try
their own alleged war criminals. Indeed, there are substantial
arguments that the fullest cathartic impact of the prosecutorial
approach to war crimes occurs when the responsible population itself
comes to grips with its past and administers appropriate justice. The
Rome Statute pays lip service to the doctrine of "complementarity,"
or
deference to national judicial systems, but this is simply an
assertion, unproven and untested. It is within national judicial
systems where the international effort should be to encourage the
warring parties to resolve questions of criminality as part of a
comprehensive solution to their disagreements. Removing key elements of
the dispute to a distant forum, especially the emotional and
contentious issues of war crimes and crimes against humanity, undercuts
the very progress that these peoples, victims and perpetrators alike,
must make if they are ever to live peacefully together.
Take Cambodia. Although the Khmer Rouge genocide is frequently offered
as an example of why the ICC is needed, its proponents offer inadequate
explanations why the Cambodians themselves should not try and
adjudicate alleged war crimes committed by the Khmer Rouge regime. To
exempt Cambodia from responsibility for this task implies the incurable
immaturity of Cambodians and paternalism by the international
community. Repeated interventions, even benign ones, by global powers
are no substitute for the Cambodians coming to terms with themselves.
That said, we could see a role for the UN to cooperate with Cambodia in
a Khmer Rouge tribunal to provide technical assistance and to ensure
that credible justice is achieved.
In the absence of the means or political will to address grave
violations, the United States has supported the establishment and
operation of ad hoc tribunals such as those in Yugoslavia and Rwanda.
Unlike the ICC, these are created and overseen by the UN Security
Council, under a UN Charter to which virtually all nations have agreed.
As the ICC comes into being, we will address our concerns about the ICC
s jurisdictional claims using the remedy laid out for us by the Rome
Statute itself and the UN Security Council in the case of the
peacekeeping force in the former Yugoslavia. Using Article 98 of the
Rome Statute as a basis, we are negotiating agreements with individual
States Parties to protect our citizens from being handed over to the
Court. Without undermining the Court s basic mission, these agreements
will allow us the necessary protections in a manner that is legally
permissible and consistent with the letter and spirit of the Rome
Statute.
In order to promote justice worldwide, the United States has many
foreign policy instruments to utilize that are fully consistent with
our values and interests. We will continue to play a worldwide
leadership role in strengthening domestic judicial systems and
promoting freedom, transparency and the rule of law. As Secretary
Powell has said: "We are the leader in the world with respect to
bringing people to justice. We have supported a tribunal for
Yugoslavia, the tribunal for Rwanda, trying to get the tribunal for
Sierra Leone set up. We have the highest standards of accountability of
any nation on the face of the earth."
We respect the decision of States Parties to join the ICC, but they in
turn must respect our decision not to be bound by jurisdictional claims
to which we have not consented. Signatories of the Statute of Rome have
created an ICC to their liking, and they should live with it. The
United States did not agree to be bound, and must not be held to its
terms.
[End]
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Official's statements and testimonies
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