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Bellinger Says International Court Flawed But Deserving of Help in Some Cases

Interviewee: John Bellinger, Legal Adviser to the Secretary of State
Interviewer: Robert McMahon, Editor
July 10, 2007

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The Bush administration’s rejection of the International Criminal Court (ICC) and its use of Guantanamo Bay facilities to house “unlawful combatants” have damaged the country’s reputation as a human rights standard bearer. Washington has recently softened its approach to the ICC and continues to gradually reduce the number of detainees at Guantanamo. John B. Bellinger III, legal adviser to the U.S. secretary of state, says that while Washington is not necessarily “warming” to the ICC, it has sought to clarify that the U.S. government agrees with the objectives of the court. In the case of Guantanamo Bay, Bellinger says the State Department is “working very hard” to repatriate some of the Guantanamo detainees as well as exploring different options for holding others seen as posing a threat to the United States.

I’d like to start with Darfur and the International Criminal Court. The Bush administration has said it would consider assisting the ICC’s work in Darfur. What does that mean in practice and does it include helping to track down the two Sudanese indictees?

We do see a role for the International Criminal Court in certain cases, including in particular the case of Darfur. For that reason we did not object to Security Council Resolution 1593, which referred the situation in Darfur to the ICC. So as a matter of principle, we have supported the ICC’s investigation and prosecution of the cases in Darfur. At the same time we have the restrictions in U.S. law and the American Service Members Protection Act, which prohibit as a general matter any U.S. assistance to the International Criminal Court. There is an exception which has not been tested, and whose parameters are not clear, which permits assistance to the ICC to bring to justice certain named individuals as well as other foreign nationals who have committed war crimes, genocide, or crimes against humanity. So we think that within the bounds of U.S. law, there would be authority to provide assistance to the ICC.

We have not been asked by the prosecutors for any specific help, so therefore it’s difficult to say in advance that we would say “yes” to any request, but we have said that because of our particular concern about the situation in Darfur and the need to ensure accountability for those responsible that we would seriously consider providing assistance in response to an appropriate request.

So in terms of the specific request, when the prosecutor recently came before the Security Council and asked for help, the U.S. couldn’t respond to that in a specific way?

Correct. People have in the past and for some period of time asked us generally for assistance. We have responded generally by saying that we would be prepared to assist within the bounds of U.S. law and in response to a specific request, but it would depend whether the type of assistance was something that we had and could appropriately provide. I think the main point that we’re conveying is that U.S. concerns about the ICC are well known, but that we acknowledge that in certain cases we would be prepared in principle to help the ICC in a situation like Darfur where there seems to be no other way to provide accountability for those who have committed crimes.

Given the strong U.S. opposition when the statute creating the ICC came into force five years ago, there is now this offer of cooperation. What has changed? Has there been a chance to assess how it’s performing so far? Does it not necessarily seem as politically motivated?

No, I don’t think that’s it. I understand that this has been the view of many ICC supporters all along—that as long as the ICC as an institution continues to behave reasonably, the United States will warm to it. I don’t think that’s an accurate characterization. I think what’s happened is we’ve made clear that not only this administration, but the Clinton administration had concerns about the ICC and the Rome Statute from the time that the statute was completed, and that we object to its purported coverage of the United States, even though we’re not a party. Nonetheless, we certainly agree with its overall ends—there’s no doubt about that.

“I think perhaps we have made a mistake in not explaining until the last eighteen months or so just how difficult it is to resettle the individuals who are [in Guantanamo], and how hard we are working.”

What we’ve clarified over the last couple of years is that the controversy over the ICC had become really a tempest in a teapot where there should be no doubt that the United States shares the same goals of ICC supporters, which is to bring to justice and end impunity to those who have committed war crimes, crimes against humanity, and genocide, and that what we have therefore been clarifying in the last couple of years is not just that the ICC and its prosecutors have behaved unobjectionably, but that there can be specific cases like Darfur where the United States sees a role for the ICC. So we continue to be concerned about its purported jurisdiction over us—that was a concern shared by the Clinton administration. That’s why President Clinton did not submit the Rome Statute to the Senate, but we nonetheless see that the ICC has a role in a case like Sudan.

Clinton did at the last minute sign the Rome Statute. Officials like [former Clinton administration ambassador at large for war crimes] David Scheffer said that it would be a good idea to be inside trying to work for change. This is a similar—in a different context—approach of some towards the UN Human Rights Council. What do you make of that argument about working from the inside versus the outside?

Well, many of us at the State Department believe it is better to be inside a tent working for change rather than outside. That, as a general principal, is probably correct but it doesn’t fit in every circumstance and in a circumstance like the Human Rights Council, which is so fundamentally flawed and which we were concerned at the outset was going to be so fundamentally flawed that we adopted a wait-and-see attitude. We sadly believe that we have been proven correct—that in fact the Human Rights Council has pursued an agenda of not going after human rights abusers, but instead protecting them. We think that it is not an organization we would be able to have an impact on by being on the inside, and we don’t think that would have changed had we been part of it over the last year.

The U.S. has been generally a big backer of ad hoc tribunals. But some say these courts do little to deter rogue regimes from flagrant violations or committing genocide. What is your response to that?

Well, it’s a good point that we have been supporters of these ad hoc tribunals—it’s one of the things that Secretary [of State Condoleezza] Rice and I have tried to emphasize when people suggest that the United States is not committed to the cause of international criminal justice because of the controversy over the ICC. In fact, we have been the biggest political and financial supporter of these other ad hoc tribunals: the ICTY [for the former Yugoslavia], the ICTR [for Rwanda], the special court for Sierra Leone over the last decade. We’ve provided more than half a billion dollars of U.S. taxpayer money to continue to support them politically and we think [these tribunals] do have a significant impact. The fact that they may be ad hoc, we think, nonetheless continues to send a signal to perpetrators of human rights violators in the countries involved in these cases, but also to other human rights violators around the world, that they will be brought to justice.

“In certain cases we would be prepared in principle to help the ICC in a situation like Darfur where there seems to be no other way to provide accountability for those who have committed crimes.”

Secretary Rice personally worked very hard with respect to bringing [former Liberian President] Charles Taylor to justice, a case that actually ties back together with the ICC to ensure that Charles Taylor did not live out his days in Nigeria but was ultimately brought to justice. We felt that having this special court for Sierra Leone to try him in Africa could be destabilizing to the region, and we therefore supported the use of the ICC facilities in The Hague for use of the special court for Sierra Leone to try him.

Turning to the situation in Guantamano Bay, there are reports that the Bush administration is stepping up discussions on closing the detention facility there but is facing difficulty over where to locate some of the remaining 375 detainees. Is that a correct characterization?

Well, the president has made clear for quite some time that he would like to move toward the day where Guantanamo can be closed. Both the president and other senior cabinet officials, including Secretary Rice, certainly understand the concerns in the international community about Guantanamo. At the same time, clearly while one can disagree as to who ought to be held, everybody will agree that there have been some very, very dangerous people who have committed serious crimes, offenses, planned acts of terrorism, who need to be held somewhere. The administration is working very hard both with the international community to ensure that we can send back those from Guantanamo who we think ought to go back to their home countries, but we’re also looking at different options as to how we can hold the people who ought to be held because they pose a threat.

Because of U.S. law preventing return [of cleared detainees] to a torture situation, they cannot be returned back to their country, but it’s also hard to find a place to send people who have been described as the “worst of the worst” in U.S. statements. So there’s this limbo that a number of these people have been confined to. Is the United States continuing discussions about where some of these people might be able to go?

Absolutely. I think perhaps we have made a mistake in not explaining until the last eighteen months or so just how difficult it is to resettle the individuals who are there, and how hard we are working. I think there has been an impression that the United States was simply holding all of these people and was not working hard to resettle them. We have been, for a very lengthy period of time, working with almost all of the countries who have nationals in Guantanamo to determine whether they want them back and will hold them under what conditions. This is a very difficult situation. Clearly, we’re not trying to send back everyone who’s in Guantanamo—we think many of them have committed very serious crimes, and that even if we can’t tie them to specific crimes, are senior members of al-Qaeda who would go back to planning different attacks. The premise of every critic who says Guantanamo must be closed immediately is that we could simply snap our figures and have everyone go back to the countries where they came from, and that’s just not really possible. So we’ve been trying to emphasize publicly as well as privately to countries around the world the difficulties of resettling and asking other countries for assistance.

The Supreme Court has agreed to reassess whether Guantanamo detainees have a right to question their detention in U.S. courts. Some have suggested that the Supreme Court could end up ruling on the status of Guantanamo itself or any other such detention centers outside of the U.S. Is there concern about the judiciary undermining what the administration sees as its key weapon in its war on terror?

I think the larger point here is that all parts of the U.S. government have been involved in dealing with this area of the detention of terrorist suspects who don’t fit into the traditional legal categories. They are not traditional criminals who were subject to the extraterritorial jurisdiction of our criminal courts, but nor do they fit within the Geneva Conventions generally because they are members of al-Qaeda and are not party to the Geneva Conventions. So we are in a new area that these al-Qaeda suspects don’t fit neatly into either the criminal laws or the Geneva Conventions. So we’ve had to work with Congress and with the courts to develop new laws, new policies, and new procedures. So we will be providing our briefs to the Supreme Court in this latest case.

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