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Contempt of Court

Author: Jonathan D. Tepperman, Former Deputy Managing Editor, Foreign Affairs
November 1, 2000
Washington Monthly

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On May 17, troops loyal to the government of Sierra Leone finally captured rebel leader Foday Sankoh in the capital, Freetown. Sankoh, head of the Revolutionary United Front (RUF), had led a brutal rebellion against the government and was infamous for tactics like press-ganging children into his militia and hacking off the hands of thousands of civilians.

After his arrest, the United States government was one of the first to call for an international tribunal to try Sankoh for war crimes. Since no such permanent court exists, however, an ad-hoc one would have to be created a difficult, expensive, and time-intensive process.

Setting up such international courts has in fact proved so complicated in the past that in the summer of 1998, diplomats from around the world gathered in Rome for a historic event: the creation of a permanent, standing International Criminal Court (ICC). The ICC was envisioned as a global judicial body capable of prosecuting the perpetrators of atrocities such as genocide in Rwanda or ethnic cleansing in Bosnia, when nations are unable or unwilling to do so themselves.

Given its stand on Sierra Leone, one would expect the U.S. to be leading the charge to create the ICC. And indeed, the U.S. did back the international court‹at first. But in 1998, something went very wrong at the Rome conference, and the U.S. ended up siding with a rogues' gallery of just six other nations, including human rights scofflaws such as Libya, Iraq, and China, in rejecting the ICC treaty. In ongoing negotiations since, the U.S. has by turns tried to weaken the court and strangle it in its crib.

Now the stage is set for a final showdown between America and the nascent court. On November 27, when diplomats next meet to hammer out the ICC's details and to finalize the relationship between the court and the United Nations, U.S. delegates will make a last push to amend the Court's founding treaty. Washington has one key demand: that all U.S. service members be excluded from the tribunal's jurisdiction.

American negotiators promise to cooperate with the court if they get their way, but warn they will abandon the ICC if they don't. The rest of the world, however, is outraged by the notion of American immunity from what was meant to be a universal tribunal. As a result, diplomats now predict that the U.S. measure will be soundly defeated. Along with it, Washington will lose the chance to participate in the greatest advance in international justice in the last 50 years, and the world's best shot at bringing criminals like Sankoh and Slobodan Milosevic to justice. And what should have been one of the last triumphs of this administration's foreign policy will have ended in a rout.

Diagram Of A Foreign Policy Disaster

Washington's current stance has undermined the country's public commitment to the international rule of law something it regularly touts when urging other countries to step in line. This has sapped American credibility and damaged the country's reputation abroad. And the issue now threatens to drive a wedge between the U.S. and its closest allies. By most measures, then, the ICC negotiations have been a serious policy failure. This has left the ICC's supporters at home and abroad scratching their heads, wondering what exactly went wrong. And whose fault was all of this?

The answers to those questions lie in some obvious quarters: the Pentagon and the Capitol Hill office of Washington's most infamous foreign-policy spoiler, the fiercely isolationist Senator Jesse Helms (R-NC). But responsibility also rests with the White House, which not only dithered in the face of military opposition to the court, but also squandered its opportunity for diplomacy by leaving too many details‹and the ICC's defense to a mid-rank civil servant named David Scheffer.

Things didn't start out this badly. In the mid-1990s, Washington actually led the drive to establish an international court. Having already pushed the U.N. Security Council to create two ad hoc war-crimes tribunals for the Balkans and Rwanda‹steps unprecedented since Nuremberg‹President Bill Clinton and then-U.S. ambassador to the United Nations Madeleine Albright seemed serious about their promises to get the ICC up and running before they left office. In the days leading up to the Rome conference, Clinton vowed that "the U.S. will work to see that [the ICC] is created."

Still, despite a broad and enthusiastic international consensus, the ICC was not so popular back at home. Republicans of all stripes not just in the party's know-nothing isolationist fringe warned darkly that the Court would undermine U.S. sovereignty and expose Americans to an unaccountable foreign tribunal. Rational or not, this fear is owed to the fact that, under the rules of the court, even non-members like the U.S. remain subject to its jurisdiction. (This is, after all, supposed to be a universal tribunal.) Thus, an American who commits a crime abroad can be tried if the country where the crime occurs agrees‹whether Washington likes it or not.

And Washington did not like it at all. The GOP and Pentagon brass were horrified by the idea that an American could theoretically be subjected to an investigation without U.S. approval. This, they warned, would open the door to politically motivated prosecutions of American soldiers working abroad on U.S. or even U.N. missions.

The Clinton administration, with its historic fear of crossing the military, did little to publicly counter this opposition. In fact, rather than mounting a strong defense of the court in domestic debates, the White House caved in and simply adopted the Pentagon's argument as its own. As Richard Dicker of Human Rights Watch recounts, "The Department of Defense became the decisive government agency in defining what U.S. policy ought to be. And for reasons I can't explain, the president and the National Security Council were unable and unwilling to say, 'Look, we've taken on board the military's views here but we're not going to have the Department of Defense set our position.' It was striking that [the administration] was unable to see that there were bigger issues involved."

Once converted to the Pentagon's parochial gospel, the White House decided to push the ICC for a measure that would exempt American service members from the tribunal's jurisdiction. But the idea was wildly unpopular abroad. This isn't hard to understand, for the U.S. proposal would leave the new international court with jurisdiction over the citizens of every country in the world save one. And most of the tribunal's backers were already sensitive to signs of American exceptionalism‹what the French decry as "hyper-power."

To make matters worse, rather than send Secretary of State Madeleine Albright, or even Clinton himself, to sell its new, unpalatable position overseas, the administration left it to State Department staffer David Scheffer to deliver its conflicted message. A high-level lobbying effort from the White House just might have won over reluctant and skeptical allies. But no such attempt was ever made. And the results have been predictable.

The Road To Nowhere

Scheffer had joined the administration in the heady early days, when its support for international human rights efforts was at its peak, and the U.S. was taking the lead on war-crime tribunals for the Balkans and Rwanda. Hitching his cart to Albright's, Scheffer served as her senior advisor and legal counsel and built up good international credentials through his work on the ad hoc courts. In August 1997, he became the first-ever ambassador-at-large for war crimes, and as such, the U.S. point man for negotiations on the ICC.

From the moment that Washington dropped its bold rhetoric and began to press for an exemption from the ICC, Scheffer's job became virtually impossible. From that point on, he told The Washington Monthly, he was caught between a "rock and a hard place." Neither those in favor nor those opposed to the treaty showed any inclination to compromise, leaving Scheffer scant space to maneuver. In trying to satisfy the concerns of both his constituencies, he inevitably satisfied neither.

Thus, in 1998, Scheffer found himself seated at the bargaining table in Rome, pushing an American agenda that seemed to conflict mightily with the nation's public positions elsewhere around the globe. Things quickly went awry. The Americans seemed poorly briefed, taking positions that confused other diplomats. The U.S. team angered colleagues by making one demand after another, while conceding little in return.

Not only was Scheffer's team unprepared, but they also made strategic blunders. Unwise early compromises would later be regretted. For example, one way to ensure a U.S. veto over prosecutions would have been to require approval of the Security Council (where the U.S. holds a permanent seat) for investigations. But Scheffer gave this up at Rome. Once gone, it has proved very hard to recover.

Still, many of the Americans' requests, which included significant revisions to the treaty, were accommodated. With troops stationed around the globe, the U.S. negotiators were acutely aware that American personnel were particularly vulnerable to the court. So they pressured other countries for added protection. As a result, the participants agreed to make the ICC's jurisdiction "complementary," meaning it would only kick in if the home country of an alleged criminal was either unable or unwilling to conduct its own investigation.

This agreement on prosecutions should have calmed the fears of nations with well-functioning judicial systems. But to the surprise of U.S. allies, it failed to mollify Washington. Eventually, the prime backers of the court, including key American allies such as Canada and the UK, drew the line. Flush from their success in Ottawa, where, over American objections, they had recently concluded a treaty to ban land mines, the "like-minded group" held its ground. And on the last day of the conference, the U.S. cast its vote against the court.

The vote came as something of a surprise to the assembled diplomats. Because the U.S. team, under Scheffer's stewardship, had failed to make American objections clear enough early on, too many other countries had underestimated the vehemence of U.S. opposition.

"We didn't know until the last minute that they wouldn't sign on," says Philippe Kirsch, the Canadian ambassador who chaired the Rome conference. According to Bill Pace, coordinator of the NGO Coalition for an International Court, "Scheffer had a government not paying a lot of thought to this process because it wasn't thought possible. But the U.S. grossly underestimated the number of countries willing to agree to the ICC."

Fall Guy

In the two years since that fateful Rome conference, Scheffer's job has become a bitter one. Despite having voted against the international court, Washington remains involved in the successive talks as a "non-state party," an ambiguous role with little leverage, even for the world's sole superpower. Washington's adamant position in these talks has earned Scheffer withering criticism from all sides, including human rights groups, foreign allies, and even some of Scheffer's former colleagues (albeit off the record, since few dare openly attack a sitting U.S. ambassador). He has also had to face down hostility from Republican members of Congress, especially Helms, his frequent sparring partner, who worry that, despite Scheffer's attempts to placate them, he is nonetheless leading America into a treaty that will undermine its sovereignty.

It didn't help Scheffer's domestic efforts when, in late 1999, the U.N. prosecutor for the ad hoc war crimes court on the former Yugoslavia announced that she was conducting an inquiry into whether NATO's bombing of Serbia during the Kosovo air war had violated international law.

Although the U.S. and its allies were ultimately exonerated, Republicans and the Pentagon were outraged that their actions would encounter such scrutiny from a body the U.S. had helped found. This, they declared, was exactly the sort of political persecution Americans would suffer were they to join the ICC. The White House was deeply embarrassed by the controversy, and its already tentative support for the court weakened.

Nor did it help matters when, this summer, Helms introduced a bill known as the "American Service Members Protection Act." This legislation aims to deprive the administration of what little room remains for negotiating with the ICC by forbidding any U.S. involvement with the court unless the Senate first ratifies the treaty.

In light of such obstacles, Scheffer can be seen as a victim of daunting circumstances and the ambivalence of an administration that has made brave proclamations on human rights issues (think Rwanda, East Timor, or Sierra Leone), only to back down at the first sign of opposition. Still, that may be letting him off too lightly, for Scheffer himself has been less than successful as a tactician.

For one thing, the ambassador's somewhat dogged style has never provided much fire to his mission. Worse, since Rome, Scheffer has adopted a dangerously rigid posture, warning that when the ICC delegates meet again on November 27, it will be the world's last chance. "If this opportunity is allowed to wither or is flatly rejected, then the opportunity to bring the U.S. on board as a friendly ally to this court will probably be lost," he said.

In talks leading up to the coming showdown, Scheffer has also offered other nations too little in exchange for emasculating their court. Washington has promised to become a "good neighbor" if it gets what it wants, providing logistical, technical, and possibly financial aid (although without ratifying the treaty). Implicit in this, however, is the threat that, if the court doesn't back down, the U.S. will become a bad neighbor. Pace calls this a tough sell. "It's like saying we won't hammer your foot if you give this to us." Nor is this just a matter of temporary brinksmanship. An American defeat now will foreclose U.S. participation in the court for the foreseeable future, whoever the next U.S. president is. As Bruce Broomhall of the Lawyer's Committee for Human Rights explains, "If he continues to push for an all-or-nothing exemption, which he won't get, and then walks away, it will be much harder for any future administration to return to the court. The administration shouldn't have limited its options. This will only lead to eventual embarrassment."

But the U.S. exemption will still likely be rejected. Says Dicker, "If the U.S. government thinks otherwise, they have a big surprise coming." And according to Lloyd Axworthy, Canada's foreign minister and a main proponent of the ICC, "[The Americans] have to ... recognize that they are not going to get an exemption from this court." By holding fast in the face of such statements and by rejecting other, more flexible fixes, Scheffer has ensured a major showdown. Whichever side backs down now will lose face, making compromise improbable.

End Game

Domestic politics aside, the Clinton administration's decision to let the military scupper its support for the ICC was a tragic mistake. The international court holds the potential to reinforce current efforts, like those now underway in Sierra Leone, that are central to U.S. interests and international security. The court would also serve as a powerful deterrent, making heads of state less likely to abuse their citizens in the first place. America's allies and over a hundred other countries, many of them, like Israel, extremely suspicious of international law‹have long since figured that out and thrown their weight behind the court.

To make matters worse, U.S. opposition was not a foregone conclusion. The Administration could have employed several powerful arguments had it chosen to confront rather than co-opt the ICC's American critics. For one thing, numerous protections have been written into the Court's statutes, including a provision (mentioned above) that guarantees the U.S. the right of first refusal to investigate any alleged crime by an American. Given the Pentagon's relatively good record of prosecuting past excesses, such as the My Lai massacre in Vietnam, there's no reason to think that the ICC would ever need to step in.

The court's charter also provides for a substantial appeal process through which a country like the United States could challenge an investigation it felt was politically biased. And Washington would likely win any such an appeal. Overwhelmingly powerful, the U.S. dominates the international scene and has had great success in bending multilateral institutions to its will.

More moderate critics still caution that an international criminal court might actually undermine the cause of justice by making tyrants and war criminals less likely to resign from office than in the past, when they could first ensure their own immunity. But this criticism is also flawed. It ignores the fact that such immunity is already largely a thing of the past, with or without an international criminal court.

Gone are the days when autocrats could hand the reins to a crony and then safely retire to a villa on the French Riviera (à la Haiti's Duvaliers). Already, many former top officials, ranging from Chile's Augusto Pinochet to members of Argentina's deposed junta to Khmer Rouge commanders in Cambodia‹face prosecution of one sort or another. The ICC will only enhance a trend that is already becoming well-established. Moreover, as Milosevic's surprise October 7 resignation made clear, dictators don't opt to resign; they are pushed out against their will. The ICC is not likely to play a role in their retirement planning, for such figures rarely plan to retire. Once things went sour for Milosevic, for example, he no longer had any say in the matter, immunity or no immunity.

Yet the Administration never bothered to make use of these arguments for the court. Nor did Clinton use his bully pulpit to that end, despite the remarkable success with which he has wielded it in similar contentious cases (such as securing support for permanent normal trade relations with China).

Still, despite the strident objections from these shores, the ICC will soon be up and running. Sixty ratifications are needed before the court comes to life, but the current total is expected to hit 30 by the end of the year and momentum is growing. Observers predict that the critical mass will be reached in 2003. Yet it now looks extremely unlikely that America will participate in the court any time soon. This will deprive the fledgling tribunal of its greatest potential ally and give the lie to declared U.S. support for international law. The costs of Washington's choice will be high: for international justice, for the victims of war criminals who will go unpunished, and for the entire web of international norms and institutions that will be undermined by another American abstention from a key body (remember the fate of the League of Nations). Only the Sankohs and Milosevics of the world will be better off.

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