David J. Scheffer, Ambassador-at-Large for War Crimes Issues, U.S. Department of State, Statement on creating an international criminal court, Washington, DC, August 31, 1998


America's Stake in Peace, Security, and Justice

Around the world, the United States has taken the lead in efforts to
bring to justice those guilty of genocide, crimes against humanity, and
war crimes.  We've promoted and strongly supported international
tribunals to punish widespread abuses in the former Yugoslavia and
Rwanda, and we have long supported the creation of an appropriate
international criminal court.

So why did the United States vote against the agreement reached last
month in Rome to establish a permanent court?  Because the agreement
that was reached puts at risk the vital efforts of the United States
and others to promote international peace and security, while the worst
perpetrators of atrocities may go unpunished.  Such an outcome hardly
promotes the interests of justice.

History teaches us that the best hope for peace and justice is when
both are pursued together.  The Nuremberg trials would not have been
possible had the Allies not defeated the Nazi regime.  When U.S. and
other NATO forces arrived in Bosnia in early 1996, only one indictee
had been taken into custody; today the number is 33.  In practice,
collective action is often the only way to lay the groundwork for
justice to begin.

Thus, the U.S. delegation, which I headed, went to the Rome conference
with twin goals:  continue the progress towards international justice,
while protecting the critical roles of the United States and other
responsible members of the international community in maintaining peace
and security through humanitarian action, peacekeeping, and, when
necessary, collective military action.

We sought a court that would be empowered by the UN Security Council to
pursue those responsible for heinous crimes, whoever and wherever they
are, but also a court whose ability to act without a Security Council
mandate would be shaped in such a way as to protect against a misguided
exercise of authority that might harm legitimate national and
international interests.

This was a reasonable approach that had been initially proposed by a UN
team of international law experts.  In Rome, we indicated our
willingness to be flexible as to how cases would be referred to the
court, but we felt it was essential to recognize a government's right
to assess the court's fairness and impartiality before allowing its
people to come under the court's jurisdiction in the absence of a
referral from the Security Council.  This approach guaranteed the
ability of responsible governments to undertake life-saving missions
without fear that their troops would be dragged before a tribunal that
had yet to stand the test of time.

Unfortunately, a small group of countries, meeting behind closed doors
in the final days of the Rome conference, produced a seriously flawed
take-it-or-leave-it text, one that provides a recipe for politicization
of the court and risks deterring responsible international action to
promote peace and security.  Most problematic is the extraordinary way
the court's jurisdiction was framed at the last moment.  A country
whose forces commit war crimes could join the treaty but escape
prosecution of its nationals by "opting out" of the court's
jurisdiction over war crimes for seven years.  By contrast, a country
that does not join the treaty but deploys its soldiers abroad to
restore international peace and security could be vulnerable to
assertions that the court has jurisdiction over acts of those soldiers.

Under the treaty, the court may exercise jurisdiction over a crime if
either the country of nationality of the accused or the country where
the alleged crime took place is a party to the treaty or consents.
Thus, with only the consent of a Saddam Hussein, even if Iraq does not
join the treaty, the treaty text purports to provide the court with
jurisdiction over American or other troops involved in international
humanitarian action in northern Iraq, but the court could not on its
own prosecute Saddam for massacring his own people.

These and other problems with the existing treaty will make it tougher
to put together effective coalitions to conduct international
peacekeeping and enforcement actions.  This difficulty will be
increased if, as envisioned by the treaty, the court tries to prosecute
a crime of "aggression" that the delegates in Rome were not able even
to define.

Foreign officials and representatives of non-governmental organizations
tried to assure us in Rome that procedural safeguards built into the
treaty -- many sought successfully by the United States -- meant that
there would be no plausible risk to U.S. soldiers.  We could not share
in such an optimistic view of the infallibility of an untried
institution.

The United States remains strongly committed to addressing the
challenges of justice, peace, and security.  We hope that other
governments will recognize the benefits of potential American
participation in the Rome treaty and correct its flawed provisions.
The United States can make the critical difference in the ability and
willingness of reluctant governments to cooperate with the court, but
not if the court places at risk those who shoulder the responsibility
for international peace and security.

In the meantime, the United States will continue to lead efforts to
bring to justice those who have committed and, in some cases, are
continuing to commit the most horrifying of crimes.  We trust our
friends and allies will show as much resolve to pursue the challenges
of today as they have shown in creating a future court.  We hold the
stakes for international peace, security, and justice to be too great
to accept anything else.


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