The International Criminal Court
Mr. Chairman, there are many representatives of governments in this room today
whose determined and sincere efforts to establish a permanent international
criminal court deserve our appreciation and recognition. All of us involved in
this effort sought to draft a treaty that would lead to the enforcement of
international humanitarian law by a judicial institution of impeccable
credibility and deserving of our collective participation and support. We all
labored for years to negotiate the complex structure of a court that would
fairly reflect the soundest principles and procedures of criminal law and stand
the test of time in a violent and unpredictable world. Under the leadership of
two leading diplomats of the law, Adriaan Bos of the Netherlands and Philippe
Kirsch of Canada, we sought a noble and worthy objective whose time has clearly
arrived. That objective is to hold accountable and bring to justice the
perpetrators of the most egregious crimes against humankind: genocide, crimes
against humanity, and serious war crimes.
All of us understand that a permanent international criminal court is a bold
experiment. At Preparatory Committee meetings in New York and for five weeks in
Rome, we deliberated as to how that can be accomplished in a world comprised of
sovereign governments, each with its own penal system but each bound together
with the cords of customary international law, reflected both in international
treaties and in common practice.
The treaty negotiated in Rome this year, and which a large number of governments
have now signed, has many provisions that we support, though we have reluctantly
had to conclude that the treaty, in its present form, contains flaws that render
it unacceptable. Even as we recognize this, we also recognize that the final
text represented an effort to promote values that are important to the American
people: justice, due process, and respect for the rule of law.
Mr. Chairman, in Rome, it had been our strong hope, as reflected in President
Clinton's long commitment to establish an appropriate international criminal
court, that the conference would achieve a consensus on the resolution adopting
the treaty. The Clinton Administration has a record that pointed toward that
objective, and has ensured that the U.S. support for the two existing
international criminal tribunals for the former Yugoslavia and Rwanda is second
to none. Many other governments here today have made important contributions to
the success of the tribunals. But not only does the United States provide both
tribunals with significant financial resources, both assessed and through
voluntary contributions, we also use our diplomatic resources, we make in-kind
contributions of personnel and equipment, we offer the tribunals important
information, and we have even brought our military capabilities to bear to
ensure that the tribunals are effective.
Thus, we had hoped in Rome for a consensus that would allow the United States to
begin planning the kind of support that the permanent court will need if it is
also to be effective -- to sustain a costly investigative capability, to build
its infrastructure in The Hague, to achieve custody of indictees, and to work
with the UN Security Council for enforcement initiatives. So long as the United
States is unable to join the treaty, it would be unrealistic to expect the
United States to give the court that level of support. We fear that, without
the United States, the effectiveness of the permanent international criminal
court will fall far short of its potential. We remember the lessons of the
early decades of this century when ambitious international institutions were
created that, in part because of the lack of American participation and support,
either collapsed or became irrelevant.
All of us in Rome shared a common goal that an international court should be
able to prosecute tyrants who commit mass murder, mass rape, or mass torture
against their own citizens, while at the same time not inhibiting States from
contributing to efforts to help protect international peace and security. The
irony of the Rome outcome on Article 12 is not lost on us. Consider the
following. A State not a party to the treaty launches a campaign of terror
against a dissident minority inside its territory. Thousands of innocent
civilians are killed. International peace and security are imperiled. The
United States participates in a coalition to use military force to intervene and
stop the killing. Unfortunately, in so doing, bombs intended for military
targets go astray. A hospital is hit. An apartment building is demolished.
Some civilians being used as human shields are mistakenly shot by U.S. troops.
The State responsible for the atrocities demands that U.S. officials and
commanders be prosecuted by the international criminal court. The demand is
supported by a small group of other states. Under the terms of the Rome treaty,
absent a Security Council referral, the court could not investigate those
responsible for killing thousands, yet our senior officials, commanders, and
soldiers could face an international investigation and even prosecution.
The complementarity regime is often offered as the solution to this dilemma.
However, complementarity is not the answer, to the extent it involves States
investigating the legality of humanitarian interventions or peacekeeping
operations that they already regard as valid official actions to enforce
international law. The court could decide there was no genuine investigation by
a 2-to-1 vote. We have other concerns of principle about the relationship
between Article 12 and international law. Our fundamental concern is, in the
absence of a Security Council referral, the court asserting jurisdiction over
non-party nationals.
Mr. Chairman, another fundamental concern we have about the Rome treaty is the
way amendments to crimes are adopted and applied. In its present form, the
amendment process for the addition of new crimes to the jurisdiction of the
court or revisions to the definitions of existing crimes in the treaty will
create an extraordinary and unacceptable consequence. After the States Parties
decide to add a new crime or change the definition of an existing crime, any
State that is a party to the treaty can decide to immunize its officials from
prosecution for the new or amended crime. Officials of non-parties, however,
are subject to immediate prosecution. For a criminal court, this is an
indefensible overreach of jurisdiction.
Likewise, there will be some who regard the idea that State Parties can opt out
of prosecution for war crimes for 7 years, while non-parties cannot, as an
incentive to join the court. Criminal jurisdiction -- individual criminal
jurisdiction -- should not be played with in this way.
We have other fundamental concerns, such as the inclusion of an undefined crime
of aggression. Aggression carries with it an extremely problematic process of
definition. How this issue will be resolved is too unclear for so important an
issue.
Mr. Chairman, having considered the matter with great care, the United States
will not sign the treaty in its present form. Nor is there any prospect of our
signing the present treaty text in the future.
There are a number of important issues that this Committee will address in its
resolution on the Preparatory Commission. We agreed in Rome that the
Preparatory Commission sessions can be funded from the United Nations annual
budget. Those sessions, however, must be absorbed so that the UN regular budget
does not exceed $2.533 billion.
The Preparatory Commission will consider many important issues, including the
elements of crimes and the rules of evidence and procedure. As a signatory of
the Final Act in Rome, the United States is entitled to participate in the
Preparatory Commission. However, in our view, it is also essential that the
Preparatory Commission afford the opportunity for governments to address their
more fundamental concerns. While we know the few concerns that we have, we do
not presume that we have all the answers. No doubt as we discuss how to build
an effective court, new solutions will emerge. We do know that, when building
an international institution that is intended to last for the ages, a solid
foundation of support is essential. We would hope that such a process might
lead to a court that would command the broad support and credibility that an
international criminal court requires if it is to succeed.
Our choice of this process is also made with care. We have heard it suggested
that the United States should exercise "benign neglect" or that we should wait
until the Review Conference 7 years after entry into force of the treaty -- a
conference to which the United States, as a non-party, would not be entitled to
fully participate. We have rejected both of these options. Another option
would be to oppose the treaty in a variety of ways. We would prefer, however, a
policy of positive and forward-looking engagement in the hope of ensuring a
treaty that will stand for values and goals common to us all.
In conclusion, Mr. Chairman, the advantages deriving from strong United States
support for the international criminal court should not be sacrificed for a
concept of jurisdiction that may not be effective and even runs the risk of
dividing us on an issue -- international justice -- that will be difficult
enough to achieve if we are together. The credibility of the court will be
demonstrated in how it builds its relationships with sovereign governments and
in how well it supports, and is supported by, the requirements of international
peace and security. The international community's willingness and ability to
prevent and, where necessary, respond effectively to atrocities is of
fundamental importance to us all. The opportunity remains for the international
criminal court to achieve its full potential. We hold the stakes for
international peace, security and justice to be too great to accept anything
else.
Thank you, Mr. Chairman.