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Should the United States Support a Strong and Independent International Criminal Court?

Speakers: David J. Scheffer, American ambassador-at-large for war crimes issues, Kenneth Roth, Executive director, Human Rights Watch, and Marc A. Thiessen, Marc is the chief foreign policy spokesman and principal speechwriter on foreign affairs for Senator Jesse Helms (NC)
Presider: Barbara Crossette, United Nations Bureau Chief, The New York Times
May 5, 1998
Council on Foreign Relations

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Ms. BARBARA CROSSETTE (United Nations Bureau Chief, The New York Times): Our speakers’ remarks will be followed by questions from the audience, and we are aiming to end at 7:00. We ask, as a courtesy to the speakers and to the questioners, that you don’t disrupt the meeting by leaving early. And then we welcome you to a reception following the meeting, at which time you’ll be able to talk to the speakers a bit more.

The nations of the world, collectively, are not likely to make a more far-reaching decision this year than that of establishing an international criminal court, a step that could be taken as early as July at a treaty conference in Rome. There is surprisingly wide agreement that a permanent court, always on call to try the worst crimes against humanity, is probably overdue. We think of Pol Pot and others who have slipped beyond our reach during the years that there was nothing like this. The problems lie in the extent of the court’s scope and its powers, and that you will see demonstrated here from our various speakers.

Tonight we will hear three, we hope, influential voices, perhaps some of the most influential voices in this debate.

David Scheffer, our first speaker, leads the United States team negotiating with more than 100 nations on the creation of this international court. An author, an expert on ethnic conflict, he was named the first American ambassador-at-large for war crimes issues in 1997, and he now coordinates support for the Yugoslav and Rwandan war crimes tribunals.

Kenneth Roth has been executive director of Human Rights Watch since 1993. A lawyer, a writer and former prosecutor, he has worked in private law practice and in public service, the latter as assistant U.S. attorney for the southern district of New York and an associate counsel on the Iran-Contra investigation.

Marc Thiessen is not here yet. He was bound by fog at National Airport, last he was heard from, but is trying to get here as soon as he can. Marc is the chief foreign policy spokesman and principal speechwriter on foreign affairs for Jesse Helms, the senator from North Carolina who is chairman of the Foreign Relations Committee. Mr. Thiessen has also been deputy director of communications for the public affairs company Black, Manafort, Stone & Kelly. Senator Helms, you will recall, has suggested that this court will be, and the quote is, “dead on arrival” in the Senate if it impinges in any way on American sovereignty. So we hope that Marc will be here before the end of the evening.

But let’s begin this debate with the man right in the middle, David Scheffer.

Ambassador DAVID SCHEFFER (Ambassador-at-Large for War Crimes Issues, U.S. Department of State): Thank you very much, Barbara, and thanks to the Council on Foreign Relations for this opportunity to address the distinguished audience here on a topic of profound importance, namely: Should the U.S. Support a Strong and Independent International Criminal Court?

The answer not only is yes, but the Clinton administration has been doing so ever since talks began at the United Nations in early 1995. President Clinton and Secretary of State Albright have repeatedly stated their support for the establishment of an appropriate court. Last September before the U.N. General Assembly, the president called for the establishment of the court by the end of this century. In Kigali a few weeks ago, he reconfirmed U.S. support for such a court. As head of the U.S. interagency delegation to the U.N. talks and the diplomatic conference this summer in Rome, I know well the strong commitment of our administration to this endeavor. We have labored hard to address the myriad issues that confront any effort to build an institution of international criminal law, and we have done so in the face of those who wish to accelerate the talks at the expense of drafting a comprehensive and credible document. Our insistence on getting the job done right within a reasonable period of time has prevailed with the support of other governments equally concerned about the integrity of such a court. We hope the remaining differences among governments can indeed be resolved in Rome this summer, and that the heavily bracketed text emerging from the preparatory committee talks at the United Nations last month will be reduced to a statute for the court that can be embraced by the international community.

Nongovernmental organizations have played a vital role in the U.N. talks. No one should underestimate the expertise they have brought to bear on this process or their efforts to influence governments. While we do not always agree with some of the NGOs, we respect their commitment to establishing a permanent court and their tireless efforts to advance the cause of international justice.

Now my good friend, Ken Roth, of Human Rights Watch, seems to be of the view that the United States is some kind of bad guy, and even suggests that the United States should be brushed aside. He will try to say that certain parts of our government have been seeking to immunize all Americans, particularly our soldiers, from accountability. And he will argue, no doubt, that our insistence on a strong role for the Security Council in relation to the court deeply undermines the independence of the court.

I could spend my few moments responding to these concerns with lofty rhetoric about the permanent court, but instead I want to raise the following pragmatic points. Our leadership, in supporting the international criminal tribunals for the former Yugoslavia and for Rwanda, as well as our current efforts to establish an ad hoc tribunal to prosecute senior Khmer Rouge leaders in Cambodia, demonstrates powerfully that the Clinton administration seeks international justice for the architects of mass killings. We have learned through extraordinarily hard work since 1993 that when diplomatic, economic or military clout is needed to achieve the aims of international justice, the world looks to the United States for leadership and assistance.

If one is truly seeking a strong and effective International Criminal Court, as we are, then it would be folly to ignore U.S. interests or seek any path that would exclude the United States from participation, either in the negotiations or in the work of an established court. No other government has worked harder and more constructively at the U.N. talks since early 1995 than has the United States government. We have been and will continue to be guided by our paramount duty to protect and advance U.S. interests. It is entirely consistent with U.S. interests to build a permanent International Criminal Court that can deter genocide, widespread or systematic crimes against humanity and large-scale war crimes in the next century. Such a court can bring to justice those who would commit these heinous crimes against our soldiers, the armed forces of our friends and allies and innocent civilians.

A permanent court also can promote far better knowledge of and compliance with the laws of war and other principles of international humanitarian law. I have often said that today’s combatants know as much about the laws of war as they do about quantum mechanics. That situation is a serious threat to the safety and security of U.S. armed forces who are instructed in the laws of war. We cannot and we will not let war criminals set the agenda of the 21st century.

It also would be folly to exclude the U.N. Security Council from the work of the court. There is no enforcement arm envisioned for the court other than the Security Council. We have long argued that the court must be so constituted as to recognize the primary responsibility under the U.N. charter of the Security Council to confront threats to international peace and security. There must be coordination and compatibility between the work of the Security Council and that of the permanent court. We have long supported the approach originally recommended by the International Law Commission of the United Nations; namely, that no case pertaining to a matter about which the Council is acting under its charter responsibilities should proceed to the court unless the Council approves such submission.

There are other proposals which, while not embracing the U.S. approach, nonetheless recognize that the Security Council has a significant and appropriate role to play in the work of the court. After all, the crimes falling within the jurisdiction of the court typically will pertain to armed conflicts and other threats to international peace and security that concern the Security Council. It is essential that skeptics of the role of the Security Council not go so far as to abandon the one instrument that can put clout behind the court and give the prosecutor the kind of political authority he or she will need to effectively pursue war criminals.

We also have long argued and advanced with specific proposals that the permanent court must ensure that national legal systems with the will and ability to prosecute persons who commit these crimes are permitted to do so, while guaranteeing that perpetrators of these crimes acting in countries lacking responsible, functioning legal systems can assume their responsibilities or will be held accountable. Where national legal systems can assume their responsibilities, then the permanent court does not have to intervene.

Allow me in conclusion to remind you of some of the fundamental positions advanced by the U.S. government in the U.N. talks. First, we support a referral system whereby a state party to the treaty or the Security Council can refer an overall matter, meaning an armed conflict or an atrocity, to the court, following which the prosecutor would investigate individuals responsible for the crimes within the context of that referred matter, just as the chief prosecutor of the Yugoslav and Rwanda tribunals does now.

Neither the Security Council nor any state party could file a complaint against an individual. We oppose creation of a self-initiating prosecutor who can investigate and prosecute anyone, anywhere, anytime and under any circumstances without the benefit of a referral that establishes such parameters.

Second, while the United States is reserved on the issue of state consent before individual cases can be prosecuted before the ICC, we firmly believe that a government that has not ratified the ICC treaty must consent to the prosecution of any of its nationals before the court. Otherwise, you would have the absurd situation whereby failure to ratify would subject your citizens to the jurisdiction of the court.

And finally, I would say that the permanent court must not become a political forum in which to challenge controversial actions of responsible governments by targeting their military personnel for criminal investigation and prosecution. The U.S. government has very good reason to be concerned about this potential use of the court, and we are doing everything we possibly can to negotiate very reasonable terms within the statute of the court to provide that kind of protection.

Thank you very much.

Ms. CROSSETTE: Thank you. Mr. Roth.

Mr. ROTH (Executive Director, Human Rights Watch): Well, thank you, Les, and thanks to the Council for holding this very timely and important debate. I just wanted to begin by saying a word about David Scheffer, who I think has one of the toughest jobs around. I watch him go to the U.N. and have to balance between those who are strong proponents of the court and those who look at the court and can only picture themselves in the dock. And then he goes back to Washington and has to negotiate between the same sets of people. But he has done this all with, I think, tremendous intelligence and integrity, and while he is too much of a professional ever to hint at a distinction between his personal views and those to which he’s assigned to defend, I think he’s done a very admirable job in handling this difficult task and I have much respect for him.

An international system of justice is, at this stage, really one of the most important priorities for the human rights movement. And that’s because traditionally, in the countries where we work where there really is no functioning legal system to protect rights, we have had to rely on stigmatization, on exposure, on public pressure, at times on economic sanctions, but they often are not enough. And what the International Criminal Court promises is the opportunity in a very targeted fashion, far more discriminate than sanctions, to target the bad guy, to target the person who really is responsible, and to hit him or her where it counts, by threatening their liberty, their future.

And so I think that this is a tremendously important institution for the protection of human rights around the world, and today we have an historic opportunity to create that institution. It is an occasion that we face in part because the Cold War has ended, in part because we’ve seen the relatively successful performance of the Yugoslav and the Rwandan tribunals, in part because there was a tremendous jump start from the World Conference on Human Rights, and in part because, through a lot of hard work, there has assembled a coalition of governments, the so-called like-minded group, that stand for a strong and independent court. And this group includes not only some very close American allies, such as Canada, Germany, the U.K., but also a number of governments that have recently completed transitions from authoritarian to democratic rule, and they understand the importance of having an institution of justice that would remain above local pressures for impunity, and it’s that pressure for impunity which is really the environment in which serious human rights abuse thrives. If you have an institution that local thugs can’t pressure and that will promise justice regardless of the threats that they make, that will go a long way toward deterring the kinds of atrocities that we’ve seen way too many of over the past several years.

Now the United States legitimately is concerned that this court would proceed with frivolous or politically motivated cases against U.S. soldiers. I say ‘legitimately,’ because the U.S. has a unique security role to play. It is by far and away the largest military force; it is regularly called upon to stop genocide or crimes against humanity. This is a force that we want to be able to deploy, but which also makes a tempting target for the Cubas or the Iraqs of the world that would like nothing better than to embarrass the United States.

And so the issue is not just simply to push these concerns under the rug; quite the contrary, but rather, to say, ‘What would it take to provide strong enough guarantees to avoid these kinds of unfounded cases brought against U.S. soldiers?’ But the basic philosophic question that, really, the U.S. government has to ask itself, and which I would welcome you asking my colleague, is, ‘Will the U.S. settle for strong guarantees, or will it insist upon 100 percent ironclad guarantees against frivolous prosecutions?’ And unfortunately, the U.S. really hasn’t made up its mind yet. The State Department, I think, is more inclined to go with strong guarantees; the Pentagon is adamant that it wants 100 percent guarantees.

I would argue that the guarantees that are either in place or that are being created are strong enough, and let me quickly outline three of them that I would highlight. One is the principle of complementarity; that is, the principle that national prosecutions go first, and that if you have a genuine national prosecutorial system, the International Criminal Court, the ICC, would back off and defer. That is the principle that the U.S. has said is its most important guarantee. That is a principle that is now clearly enshrined in the ICC statute and, indeed, is enshrined there in precisely the words that the U.S. wanted.

Second, that principle is buttressed procedurally by a whole range of procedural guarantees to make sure that it is conscientiously applied. Any interested nation will probably be able to challenge the admissibility, the technical term, of a case, to make sure that national prosecutions should not have been deferred to. That would be an appealable decision. It is likely that that kind of challenge can be brought even after the ICC has begun a case. The defendant him or herself would be able to make such a challenge. There would be a very unusual pretrial appeal allowed. These are extraordinary procedural guarantees to buttress that substantive standard of complementarity.

A third area where I think strong guarantees can be put in place—and this is less developed, but I think it’s quite susceptible to being developed—is in looking to the caliber of the judges and prosecutors who would be operating the ICC. The members of the court, those who ratify the statute, will be the ones who will get to be involved in this selection process. And people have proposed various kinds of supermajoritarian requirements for the selection of judges. There are proposals out there that special panels be appointed that would actually put forward candidates, so that you can try to make sure that even the options available are of the caliber of a Richard Goldstone or a Louise Arbour, the people who have so far been running the ad hoc tribunals.

I think that these are doable propositions, and these kinds of strong guarantees, I would submit, should be sufficient. Unfortunately, the U.S. is either advocating or toying with 100 percent guarantees. It wants the Security Council to have to approve most prosecutions in advance, and that would mean that any permanent member of the Security Council could single-handedly block a case from going forward. The Security Council has performed abysmally so far in pursuing justice. It has set up the Rwandan and Yugoslav tribunals, but it has not proceeded against Saddam Hussein, it has not proceeded against Pol Pot, and I could name a host of others.

Yet also, this idea of allowing each permanent member of the Security Council to, in a sense, dictate the court’s docket undermines the principle of universality which the court should be founded upon, and thus is objectionable to the vast majority of states out there. They have proposed an alternative, the so-called Singapore proposal, which would allow the Security Council to block prosecution, but as a body as a whole; that is, no single permanent member could do it single-handedly. That is a reasonable compromise that I think the U.S. should endorse. It has not yet, but I hope that it does.

If I could just mention two other issues that the U.S. is proposing which, again, are in the ironclad variety, which I think are unnecessary. One is insisting—it has not taken this position yet, but it’s contemplating it or toying with it—insisting that any government whose national is prosecuted must consent to the prosecution. That’s effectively like asking Saddam Hussein for permission to prosecute himself. And that will not work. It will paralyze the court. And while the Security Council could override that lack of consent, it essentially turns the International Criminal Court into an appendage of the Security Council, the judicial chamber of the Security Council, rather than a universal forum.

Finally, the U.S. is pushing to restrict the independence of the prosecutor by denying him or her the option of bringing cases him or herself, but rather insisting that either states complain or the Security Council refer the matter. And again, you can’t trust states to bring cases. I cite again the case of Iraq, Saddam Hussein’s genocide against the Kurds in 1988. Human Rights Watch has assembled literally tons of evidence. There is a clear-cut, ironclad case against Saddam, and no state is willing to step forward. If we have to rely on the Security Council or states to bring cases, many, many tyrants will escape with impunity. We need to rely on an independent judge to bring these case.

So the basic issue is: Will the U.S. settle for the strong guarantees or will it insist on ironclad guarantees against frivolous prosecution? And if the latter, I’m afraid that this court is going to go forward without the U.S., little as I want to see that happen.

Ms. CROSSETTE: OK. In the absence of Mr. Thiessen, still, we’ll give Ambassador Scheffer and Mr. Roth two minutes each to rebut; really two minutes, because I’ll be in trouble otherwise.

Amb. SCHEFFER: I’ve always enjoyed speaking with Ken Roth, and I think I’m going to enjoy even more debating with him. His skills are much to be applauded.

Let me just say very briefly a few points here. On the issue of restricting the independence of the prosecutor, we need to make very clear that we’re suggesting a fairly wide ambit of independence once the prosecutor is actually seized with an overall matter to investigate and prosecute, an overall atrocity, an overall armed conflict. We’re not suggesting any Security Council approval or state party approval of independent investigations and prosecutions by the prosecutor on that basis alone. Once he’s seized with an overall matter, he can go where the evidence takes him.

But Ken’s reference to the Iraq situation and the genocide case; one of the problems that did emerge with the Iraq genocide case is that the state that would bring the case would really have to be, in a sense, the plaintiff in the court with respect to that case. It would have to take on the arguments and argue them. That is not the case with the International Criminal Court. A state party would refer an overall matter to the court, and then could strictly step aside. It would never have any responsibility to actually argue any case before the court. So I think the fear that no state party of all of these very forward-leaning states that want this court would ever be prepared to bring an entire matter before the court and ask the prosecutor to investigate it—I don’t think it’s going to be the case. There are going to be states very willing to get the matter out there before the court, because they will have no responsibility thereafter to follow it. It will be the prosecutor’s responsibility.

As for the conduct of the U.N. Security Council, I would just say that our reading of the Security Council’s record is not as abysmal as Ken has suggested. In fact, the Security Council, if one looks at the record over the last seven to eight years, has been very determined, first of all, to condemn violations of international humanitarian law and, in certain instances, to set up ad hoc criminal tribunals, which never existed before. They had to be invented, and that took some work before the Security Council. It took a learning curve, it took precedent and experience, and that experience is now accumulating such that the United States government was very prepared a couple of weeks ago to go before the Security Council and seek the establishment of another ad hoc tribunal, and to do so in part based upon the experience that has accumulated by the Security Council. So we don’t see that as strictly as abysmal as Ken suggests.

And my time is up.

Ms. CROSSETTE: It’s time.

Mr. ROTH: All right. Three quick points. First, with respect to whether states can be counted upon to bring complaints; this case of the Iraqi genocide against the Kurds—the reluctance of states was not simply sort of the expense and difficulty of having to prosecute the case themselves. I spent much time traveling around the world trying to convince governments to bring this case, and a lot of them were concerned about losing economic opportunities when the sanctions against Iraq were lifted. They were worried about the consequences in the Middle East, of being seen as the ones to single out Iraq. They were worried about terrorist retaliation. And so these are the same factors that I think would make many states hesitate in filing a complaint and why you really need an independent prosecutor to move forward.

I’d like to take a moment to address what Marc Thiessen would have addressed, which is to say, ‘This is dead on arrival in the Senate.’ And I think it’s important to note that he’s probably right, and that we cannot be fashioning this important international institution around the current preferences of the head of the Senate Foreign Relations Committee. It is very important, I think, to recognize what’s at stake here, and to pursue what I would call a ‘sign now, ratify later’ approach. I think it’s important that the U.S. sign the treaty that emerges in Rome. I would not make the litmus test whether Jesse Helms approves of that treaty. Politics change.

Finally, I just wanted to sort of reflect on where the U.S. is. This should really be a moment of victory for the United States. The U.S. should be embracing the court that is going to be emerging in Rome. It should be enthusiastic about the results. And while President Clinton has certainly endorsed the court in broad brushstrokes, he is not embracing it in its particulars, and, indeed, the U.S. is seen by many, not just me, as the bad guy in this process. And I think it’s very unfortunate, and I don’t think it’s too late to change that. But this court, an effective, functioning court, should be in the U.S. interest. It would deter precisely the kinds of atrocities that we often have to deploy our troops to stop. And I wish that President Clinton could gather the political courage to overrule the Pentagon objections and to make this a happy moment for the U.S., one that is, indeed, a victory for it as well as for justice.

Thank you.

Ms. CROSSETTE: Before we open this to questions, one obvious question I think a lot of people have: What are the chances that we really are going to have this court this year? And if not, why not?

Amb. SCHEFFER: Shall I go first?

Ms. CROSSETTE: Yes, please.

Amb. SCHEFFER: Oh, I think there’s a very, very good chance that at the end of the five weeks in Rome, there will be considerable pressure to try to come to an agreement on a statute for the court. It is heavily bracketed right now, but everyone knows we’ve been at this now for many years, and one would hope that common ground will be achieved among many disparate views about this court. I must say that, just quickly in response to Ken’s point about a moment of victory for the United States, everything is relative in this debate, and a lot of parties to this debate tend to self-proclaim in advance what is victory or what is a good court, what is an effective court, and then, if there’s disagreement with that concept, then suddenly the one who disagrees with you about what constitutes an effective court is somehow dragging the court down. It’s hijacking terms that, in fact, we use constantly. We talk about what is an effective court? What’s going to give this court real clout? That’s the kind of court we want, one that really works, and is not just a paper tiger.

But I think there’s a good chance. The question is whether by the end of the calendar year ‘98 all of the various pieces that are required for this treaty will, in fact, be in place so that a large number of countries can seriously consider signing up to it.

Ms. CROSSETTE: As you know, this is the 50th anniversary of the Declaration of Human Rights, and many people are focused very much on getting this achievement this year. And I want to add a question here: In fact, why not the Security Council? You talked about countries being afraid for economic, domestic, political, whatever reasons, of indicting a country like Iraq. One would have thought that that would mean that the Security Council would be the perfect body to do this, because it would be so amorphous that it wouldn’t be subject to attack.

Mr. ROTH: Well, the problem is the Security Council hasn’t done it, you know, because any of the five permanent members can block it. And so, you know, today it’s France and Russia that are siding with Iraq; tomorrow it might be China. I mean, there are plenty of permanent members that are not necessarily for universal justice. And so I have no objection to the Security Council referring cases. I mean, that clearly is one of the options, but to have that be effectively the exclusive mechanism, which I think when you get down to sort of the bottom of the U.S. position, that is basically what it is. There would be certain technical situations where a case could go forward; let’s say a transition from an authoritarian to a democratic government, where the army and the abusive army is no longer a serious factor in the country, and it would completely defeat it. And so they wouldn’t be able to threaten the government not to consent to prosecution.

In those kinds of situations, you know, yes, there would be other options, but effectively you’re going to be dealing with Security Council referrals most of the time, and you can’t trust the Security Council to bring many cases that should be brought. They have done it in two important cases, and I don’t want to minimize that, but I have, you know, a higher vision than just these two.

Ms. CROSSETTE: In a word or two, do you think it’s going to happen?

Mr. ROTH: I think it will happen, yes. I think that the issue really is where will the compromise be. And if the U.S. is going into Rome and is willing to talk about what strong guarantees against frivolous prosecution will be put in place, there’s a compromise that can be had. If it goes in there saying, ‘We want 100 percent guarantees against Americans put in the dock,’ I think it would be better to state that up front, because it is not worth compromising with the U.S. at that stage, and we shouldn’t be crippling an institution unnecessarily to gain U.S. signature that we’ll otherwise be losing.

Ms. CROSSETTE: OK. I think we’re ready to open it to questions from the audience. The rules are, please stand away from the microphone, because this room does soak up sound; state your name and affiliation when you ask your question; and keep your questions short—no two-part, three-part questions or speeches, as you know. And you might also say if you want both or each person to answer. There’s one question right here in the front. Oh, sorry. We’ll get to you. Yes.

Question from the Audience: Could both of you answer how, if one applied the U.S. proposals to the current U.S. proposal for an ad hoc tribunal on Cambodia, particularly the complicated proposals for state consent, would you be able to get the consent of, let’s say, Hun Sen, including defectors from the Khmer Rouge or a nowness government and probably deserve to be indicted?

Amb. SCHEFFER: Under the current U.S. proposal, in the final analysis, it would not matter, because the Security Council referral of a Cambodian situation would override any necessity for a state consent.

Question from the Audience: Even under the U.S. proposal?

Amb. SCHEFFER: Well, yes, that’s part of our proposal for a permanent court.

Mr. ROTH: The conception of consent out there would be overrided by the Security Council. The problem is that I don’t know that you can trust the Security Council to act on Cambodia. They haven’t yet. And I hope that they do. We’re pushing for them to do that, but it’s precisely that uncertainty that I think requires an alternative route, which would be the independent prosecutor.

Ms. CROSSETTE: Go ahead.

Question from the Audience: Ambassador Scheffer, you said your reading of Security Council’s record was not so dismal. Well, it has done the things you’ve said, created the ad hoc tribunals. On the other hand, in the process of appointing a prosecutor for the Yugoslav tribunal, it was pretty dismal. And one member of the Council rejected proposed prosecutor after prosecutor on what can only be called domestic political grounds, and it was only when a South African, with the endorsement of that magic leader, Nelson Mandela, was proposed, namely Richard Goldstone, that it was agreed. Aren’t you afraid of similar national politics intervening in any system so controlled by the Security Council?

Amb. SCHEFFER: Well, first, it would be a vast delusion to assume that only the Security Council has political ramifications in its work. So do state governments and so would an independent prosecutor. There’s no way to eliminate political factors from the work of this court. Any state referral of a matter to this court would be a political decision by that state. And there is simply no way whatsoever to guarantee that an independent prosecutor or any judge would never, ever have any political thought whatsoever in the conduct of his work.

But I would say this: The proposal for the permanent court, just on the narrow issue that you’ve raised, Tony, is that the state’s parties would select the prosecutor, not the Security Council. So that issue does not arise with respect to the permanent court.

Question from the Audience: I was just using that as an example. I didn’t mean to focus it on that, but as an example of what binds the Security Council and therefore also subject to a veto...

Amb. SCHEFFER: But remember that, you know, for all of those in this audience who have argued for multilateral decision-making for how many decades, the fact is the Security Council does represent a collective decision-making process, and we’re not going to reject that out of hand.

Ms. CROSSETTE: Anything you want to add?

Mr. ROTH: Yeah. I think it depends; how does the Security Council get involved? I think really both sides of the debate see a role for the Security Council. The so-called Singapore proposal would allow the Security Council, as a collective body, to stop prosecution if it was interfering with the Security Council’s peacekeeping function. And that, I think, is an acceptable proposal to these so-called like-minded group; that is a proposal that’s likely to be passed in Rome. But what the U.S. is proposing is something different. It’s not really a collective decision-making process, but is rather a procedure that, because it would require the Security Council to authorize prosecutions, it would allow any single permanent member to block those prosecutions. And it’s that unilateralism that is what’s really objectionable about the current U.S. position.

Question from the Audience: I applaud, Ken, your basic litmus test that we should be looking for a treaty that the U.S. can sign and not necessarily ratify in the short term, given the vagaries of politics. But I wonder if you could address what is kind of the precedent we saw with the land mines convention of NGO purists getting a treaty that was wonderful on paper, that the only thing it’s missing is the countries that both produce the mines and the countries that would use them. They have refused to sign it because you couldn’t make some reasonable compromise. And the question with respect to the court is whether, in the short term, in its initial phases, don’t we need to have a court that is able to demonstrate teeth by being enforceable? In other words, having the support of the states that would be able to make it work? And I would ask you, what would be wrong with having the provisions on Security Council consent for the first 10 years of the court’s life, so that you begin to get a track record of success?

Then I would ask David, why not, after 10 years, have that provision lapse or have, after those 10 years, any Security Council vote be as a procedural rather than substantive matter, that is in which no veto by the five permanent members would apply?

Mr. ROTH: Let me begin, because I would differ with your characterization of the land mines treaty, in that I think most of the countries where land mines are used have signed, and a good number of the producers have signed. But that’s a different debate.

We clearly want a court that will be of academic worth. And it would certainly help to have the U.S. at least sign, because by signing it would be that much easier for the U.S. to provide political support, provide economic support. I think even if the U.S. doesn’t sign, it will remain in the U.S. interest to see Saddam Hussein prosecuted, to see, you know, the other Khmer Rouge prosecuted. And even if it hasn’t signed, I see it providing political and economic support in many cases. But let’s say that, even hypothetically, the U.S. just walks away from it entirely. I think that would be a temporary walking away.

But there are courts out there that function quite well without the United States—the European Court on Human Rights and the European Commission on Human Rights. It’s not a prosecutorial body, but it’s a very effective human-rights court with an extensive investigative capacity that has nothing to do with the United States. The Inter-American Court and the Inter-American Commission on Human Rights similarly operate very well and the U.S. is not involved. Now they would function better, at least the Inter-American one, if the U.S. was involved, and they clearly want the U.S. to be there, but the question is, what is it appropriate to give up in the process? And I think if you give up these basic principles of universality that it, at least theoretically, could apply to every party, that that’s a principle that is inconsistent with the justice that I think is behind the vision that most of us have for this court.

Amb. SCHEFFER: Let me just add a couple of points directly to your question. We are negotiating the probability of review conferences of this treaty, whether it be five or 10 years after the establishment of the court. The point is, they’re review conferences for the purpose of considering amendments to the treaty, perhaps of adding new provisions, new prohibited weapons, that may have emerged in the meantime as weapons that constitute war crimes, or use of them. So I think in the context of your proposal, it’s already in the draft statute that at a review conference that particular approach is fair game for consideration.

And secondly, on the issue of substantive vs. procedural votes, we have examined that very, very closely, and our conclusion is that, in all likelihood, the members of the Security Council would not agree that decisions of such import could be regarded as procedural votes. I think the pressure would always be to not come into the substantive vote column.

Ms. CROSSETTE: Yes. You were next.

Question from the Audience: You know there are 185 nations in the world, and the United States is one of them. Also, there are 800 non-governmental organizations that are going to descend on Rome in July, all lobbying for their respective interests, both political and other. And with the exception of the draft in its present condition, and with the unresolved issues arising out of that draft, major issues like preconditions to jurisdiction, complementarity, the role of the Security Council, etc., you fellows are going to have to produce a statute that may hopefully receive at least 60 ratifications in three to four weeks of debate on all of these issues.

So my question is kind of a practical one. I personally don’t think that any complaint will ever be brought under this statute by a state party or by a prosecutor, because I think the preconditions to bringing that are almost absolute. And so the chances are that anything that comes out of the mechanism that will be agreed upon, hopefully, will come from the Security Council.

And then we have these big questions about whether you’re going to drop aggression; are you going to drop the treaty crimes? Are you going to stick just to crimes against humanity and the war crimes and genocide? And those questions—in the NGO community that Ken and I live in, we’re kind of assuming that aggression’s going to be dropped; I mean, some of us are. Not all of us, but some of us are. And the treaty crimes don’t have much of a chance at all—drug trafficking, terrorism, assault on U.N. personnel. They probably won’t end up in the final statute.

So my question to you is: What are we going to get, and what are the chances that we’re going to get, and is there a possibility that we’re going to have to adjourn this conference for a future time so that will give us proper time to weigh the different interests that will be fed into Rome?

Amb. SCHEFFER: Well, the U.S. delegation is cautiously optimistic. I mean, there’s going to have to be a lot of work done, and a lot of work done even before June 15th, when this conference begins. And that is taking place all around the world in various meetings right now among different groups of countries who are meeting to try to figure out exactly how to reach that common ground in Rome. So I don’t think you’ll see the dice really roll until we’re at Rome and some of these positions start to reveal themselves among different blocs of countries.

But, you know, while on the one hand there is a tremendous amount of complexity that remains with this treaty text, on the other hand, there is the fact that this barbarity is occurring, and we have to respond to it. People understand we cannot delay in responding to this barbarity. So I think when you have that real fact providing some momentum behind the negotiators—there’s nothing theoretical about what’s going to happen in Rome—it’s going to be extremely pragmatic, in part because it’s driven by horrendous events that continue. And I don’t think negotiators can walk away from Rome with a clear conscience if they haven’t done their absolute best to try to reach that common ground.

Question from the Audience: Stephanie Grant from the Lawyers Committee for Human Rights. Criminal courts—if they’re about anything, they’re about enforcement. And one of the paradoxes of this process is that it was only at the December proprietary committee meeting—that’s six months ago—that any delegation began to think about how the court would enforce not only the arrest of suspects, as has been spelt out in very big letters in the context of the Yugoslav tribunal, but also the smaller change of how you compel witnesses, how you get evidence, how you do all the very detailed and very essential things which a criminal court must do. The answer to that may be, in the biggest situation, some action by the Security Council. But the Security Council is not in the business of detailed enforcement.

I wanted to ask both of you to reflect in a very, very practical way on how you see, at this very late stage, a regime being put in place so that the statute and the rules of procedure and other processes give the court the real teeth which any ordinary citizen knows a criminal court must have.

Amb. SCHEFFER: If I may, Ken? First, it really was not December when all of that work started. It has been ongoing for a long time. The question is: When does it reach the floor for formal debate in the prep com? And we certainly had a lot of that in December; we had a lot of it again in March and April. But the United States has been very, very hard at work on those procedures.

The issue of enforcement itself—there is no perfect solution to the issue of enforcement. This court is not going to have a police force or an Army that can cross sovereign borders and enforce its orders. That simply is not part of the statute. Frankly, we would not get very far in the negotiations if we sought to create that in the context of the treaty itself. So what we’re looking at is: How do you establish provisions in the treaty whereby, if you are a state party to the treaty, you have accepted obligations of cooperation with the court? When the prosecutor sends out a request for production of witnesses or documents or transfer of defendants, to what extent is the state party required to cooperate? And that’s where the real debate is, and it’s a very, very difficult debate, because you also have to take into account all of the procedural requirements of national criminal justice systems and how they can integrate themselves into compliance with that kind of order. One small example: There’s a debate about whether or not to, quote, unquote, “extradite” a defendant or “transfer” a defendant to the court. We support the proposition of transfer, because if you start talking about extraditions of defendants, then you bring in an entire panoply of constitutional provisions of many countries, which shield their citizens from, quote, unquote, “extradition.” So it’s a very, very important process, and it’s those types of debates, day after day, which in fact frame the enforcement capability of the court.

Mr. ROTH: I would simply add that it’s going to be the rare case that you would go to the Security Council and use military action to enforce the court’s edicts. Much of the court’s success is going to depend on being seen as a legitimate institution, and that is part of why I put such a premium on having a court that lives up to the basic principle of universality. If the court is seen as providing one kind of justice for the Security Council permanent members and another type for the rest of the world, it will have much less legitimacy. It will be much easier for governments to snub it and not cooperate with it. And so this is not just an abstract point. I actually think it’s essential to the court’s long-term success.

Ms. CROSSETTE: Fine. This is going to get tricky now. Marc is at a disadvantage—although he’s never at a disadvantage, I’m sure; he knows what the argument is here. But we’re going to give him the time that we were going to allow him earlier, which is about four or five minutes, to present his case. We’ll then come back to some rebuttal.

I also wanted to raise, if we have time—implicit also in the enforcement question seems to be the question of the funds the court will have, because I think what we see in, certainly, the case of Rwanda, where there has been a lack of administrative support, this has had an effect on the court. And that’s another issue.

But let’s hear from Marc first.

Mr. MARC A. THIESSEN (Press Spokesman, U.S. Senate Committee on Foreign Relations): Right.

Ms. CROSSETTE: We introduced you in your absence, and we didn’t say anything unkind.

Mr. THIESSEN: Well, thank you. I apologize for being late. I got held up at the airport, and I suspect there was a vast conspiracy involving the United Nations, USAir and the trilateral commission to keep me from being here to speak.

But I thought that my job was twofold; one, to be a respondent to the two presentations, and also to present some of Senator Helms’ concerns about the International Criminal Court. Obviously, I won’t be able to do the first part, because I haven’t heard, though I could anticipate some arguments. But I’ll try and do my best to quickly do the second.

Starting out, I would like to read quotes from a couple of newspapers. This is an article from Deutschpress Argentia. Lead: “Libyan court has urged Interpol to arrest nine U.S. officials who were in the office in 1986 when the United States bombed Tripoli and Benghazi, to send them for trial to Libya. Al-Haram reported Monday the court accused the nine of playing a main role in the April 1986 air raids, in which 37 people were killed, including the adopted daughter of Libyan leader Muammar Qaddafi. Libyan officials want the case heard in Libya or a neutral third country.”

The New York Times, Tuesday, April 28th, on Jean Chretien’s visit to Cuba: “Mr. Castro used the occasion of Mr. Chretien’s visit to compare the embargo to a, quote, ‘new version of the Holocaust,’ end quote, and suggested the United States officials should be tried as war criminals before an international court. Today White House spokesman Mike McCurry called Mr. Castro’s comments ample evidence of what an outlier he is in the world community.”

Soon thereafter, the U.N. Human Rights Commission voted not to condemn Castro’s human-rights record, so they took exception to what Mr. McCurry said.

The United States has been accused of unfair, arbitrary and racist use of the death penalty by a United Nations special investigator. In a reported meeting of the U.N. Commission on Human Rights—we all know the story behind that—he also said the use of the death penalty in the United States was in violation of international law, which, I presume, is what this court is going to partially be enforcing.

“The International Court of Justice”—this is The Washington Post—“yesterday told the United States to stop Virginia from executing a Paraguayan citizen while its judges consider whether he deserves a new trial because of his treatment, which violated an international treaty”—Ladies and gentlemen, the docket of the International Criminal Court at some point.

As Mr. Scheffer, I’m sure, has told you, the Clinton administration is pushing for certain limits on the jurisdiction of the court, on the independence of the prosecutor and so forth, and they deserve credit for that. They’ve had all the people come in from the Pentagon for a briefing and to engage their militaries in the debate and so on, and they deserve credit. But, as the saying goes, the road to hell is paved with good intentions. Those with whom Mr. Scheffer is negotiating don’t support his position on the limited view of the court.

A few examples from comments from the April PREP COM meeting in Geneva. This is a quote from Mary Robinson, the former President of Ireland and U.N. High Commissioner for Human Rights. “The ICC will be a mechanism for transforming international norms into international law. The world needs a powerful and independent international court.”

Professor Lucius Kelfiche, head of the Swiss delegation, questioned whether the international court should have pre-eminence over national courts, and noted that this, of course, would require states to divest themselves of some aspect of their sovereignty by treaty or possibly by custom, which is what would happen eventually with an international court.

Giofranco dell’Alba, member of the European Parliament from Italy and E.U. delegate for the prep com; quote: “One thing is absolutely clear: Any establishment of the court will require a cession of some aspect of sovereignty. We can’t have a court without states giving up part of their sovereignty. After 50 years, we are ready to give up sovereignty in Europe. Now is the time for the world to do a small thing in the same direction.”

The advocates of the International Criminal Court know full well that even if it’s weak at its inception, the court will grow in scope and power over time. Now one of the key issues is the jurisdiction. The court’s being presented to the world strictly as a vehicle right now to prosecute war crimes, but the term is loosely defined, including attacks on non-military targets, for example. And the draft treaty, which I know has, like, 1,700 brackets of things that still need to be worked out, but the draft treaty includes a wide range of crimes against humanity, which include not only murder and genocide but, if we in the committee understand it correctly, includes persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, or religious grounds—in other words, group rights—as well as rape, slavery, enforced prostitution and enforced pregnancy. So the abortion cause is taken care of in this court.

We were told by the Dutch negotiator, our committee staff, that aggression is still on the table as one of the core crimes that would be taken in the jurisdiction of the court. Well, what exactly is aggression? The Libyans seem to think the Reagan administration’s bombing of Tripoli was aggression. Castro seems to think the U.S. embargo of Cuba is aggression, and apparently a majority of the U.N. General Assembly and the U.N. Human Rights Commission agree with him.

Take Iraq; Lee Casey and David Rifkin had a very interesting article in a recent issue of Commentary, and they bring up this example. Say the U.S. takes the position that we don’t need further Security Council authorization to attack Iraq if we have another flare-up with Iraq. Three of the five current members of the Council disagree. Let’s say we do it anyway. Could the president and all those people who implemented the attack and all of the people involved, all the way down to the lowest private who pushed the buttons, be brought up on charges in the International Criminal Court? Could, based on civilian casualties—let’s say Saddam Hussein puts civilians as human shields in front of certain targets. Could the President be charged with violation of the laws of armed conflict? As it is in the treaty under the current draft, yes, absolutely.

But what about cases where the U.S. hasn’t sought Security Council authorization for a strike? We didn’t have Security Council authorization to bomb Libya. Maybe the Libyans have a case. What about the invasion of Panama? What about the invasion of Grenada? Currently drafted, the ICC prosecutor and judges would be in a position to sit in judgment of the U.S. foreign policy and national security decisions.

Now the question for us is: Is it really in America’s interest to create an international court with the power to enforce the notion that the U.S. must seek permission of the United Nations before we defend our national interests? We say no.

Question of the independence of the prosecutor; what discretion will the prosecutor have to investigate and try violators? The administration has tried to reign in the prosecutor. They’ve taken the position that, if the Security Council has a matter under review, the prosecutor can act only with the Security Council’s authority. It means giving them a veto. But let’s say the Security Council doesn’t have a matter under review. Then any state’s party can bring up the charge in the court, and the U.S. has no veto. That’s a big loophole.

Another problem is Singapore has just made a proposal, which the British government agreed to, that the Security Council must act affirmatively to stop a prosecutor from starting a case. So that means not only would the U.S. not have a veto; the U.S. effort to stop a case could be vetoed, and we would have to convince a majority of the Security Council to stop it.

Bottom line for us: The United States—not the Security Council, the United States of America—must have a clear and unambiguous veto over all cases, meaning that we must be able to guarantee that never will an American citizen ever be brought to judge by an International Criminal Court.

Selection of judges—this is another real danger, that a prosecutor and bench would be staffed by individuals hostile to the United States. It’s currently drafted, ‘Selection of judges on the basis of simple majority vote.’ Now look at the U.N. General Assembly. You can get a sense of what the pro-American sentiment is in the world. The U.N. General Assembly was, throughout the Cold War, a vehicle for America-bashing. Now the U.S. is pushing for a supermajority to select the judges. But if you look at the G-77, which is a misnomer ‘cause it’s a lot larger than the G-77, they basically represent a supermajority. So there’s no ironclad guarantee that judges will represent pro-American or neutral or Western views of justice.

Let me make one last point and then I’ll turn over. The argument for an International Criminal Court—and the Stanley Foundation report cites this—is that the threat of prosecution deters criminal behavior. Really? The Yugoslav tribunal was in full effect and General Mladic and General Karadzic had been indicted when General Mladic undertook the assault and genocide in Srebrenica. And while he was sitting there drinking cocktails with the U.N. commander, who was supposed to be defending the safe haven of Srebrenica, I wonder if they were discussing General Mladic’s concern about his indictment in the Yugoslav war crimes tribunal? This court will not be effective in deterring war crimes. If anything, it’ll become an excuse for inaction, because the only way to deter genocide is to take steps to stop it, and this court will do nothing to that effect.

Ms. CROSSETTE: You’ll all get a chance to speak with Marc, as I said, at the reception. Kenneth Roth would like to go first, and then we’ll wind up where we started, with Ambassador Scheffer.

Mr. THIESSEN: OK.

Mr. ROTH: Well, let me just make four brief points responding to Mr. Thiessen. First, with all due respect, it’s a series of straw men you hold up with respect to the kinds of crimes that would be brought before the court. Genocide, crimes against humanity, war crimes are codified in considerable detail. We’re dealing with the most severe kinds of crimes. This is not, you know, persecution in the sort of domestic discrimination sense of the term. It’s persecution in the sense of the term that we saw during the Holocaust. So, you know, don’t scare folks here. I mean, this is not something that just, you know, day-to-day street crime is going to be brought before this court.

Second, the issue of aggression—it’s unclear whether that will be one of the crimes. If it is, though, the only proposal out there that’s being treated at all seriously would require the Security Council to define an instance of aggression. So even if the U.S. were to invade Grenada without any Security Council action, this would not be deemed a crime of aggression unless the Security Council specifically said it was so, and the U.S. controls that process. So it’s a straw man to say that we’re going to be prosecuted for aggression, you know, for every step we take militarily.

Third, the proposal that, in essence, you’re making, which is that no case should go forward unless the country consents—because that’s the only ironclad guarantee against the prosecution of Americans—actually works against your concern with a politicized judiciary. The best way to make ratification a cheap act is to let each country—you know, allow it to refuse consent to prosecution of its nationals. Because as soon as that happens, countries don’t take it seriously. Cuba will sign up, Iraq will sign up; you know, Libya will sign up. And you will suddenly have all these countries state parties and having a vote on who the prosecutor and the judges are going to be; whereas, if you don’t make consent a requirement, these countries are not going to sign up. You can still get them through Security Council action, but it doesn’t dilute the process for selecting top-notch prosecutors and judges of the highest integrity.

And I forget what my fourth point was.

Ms. CROSSETTE: You get a second chance.

Mr. ROTH: All right. Anyway, good enough. Oh, I know. I’m sorry—deterrents. One moment. You’re absolutely right; Srebrenica took place after Mladic and Karadzic had been indicted. I mean, it was at a stage where, frankly, the tribunal was not taken seriously. I think today you get a very different response. When arrests have been made, when Karadzic and Mladic are hiding for their lives, what the U.S. did as Kosovo broke out, basically funding $1 million for Louise Arbour to start an investigation of what was happening in Kosovo, absolutely deterred Milosevic. He took a huge step backwards. And it highlights quite vividly the effectiveness of a functioning court in deterring the kind of atrocities that we witness today.

Ms. CROSSETTE: Ambassador Scheffer.

Amb. SCHEFFER: Thank you. I would agree with Ken that this is clearly an evolving process. I would also agree with Mark, however, that we have to always stay totally focused on U.S. interests as we proceed with the negotiations of this treaty. Otherwise, we would not be advising the president to sign it as a final product unless it meets those fundamental interests of the United States. So it’s not a question of signing anything out of Rome. The administration clearly has some thresholds that have to be met in key provisions of the treaty before we’re even in a position to sign it. And then, of course, the whole reason we have a ratification process under the U.S. Constitution is because both branches of government have to be satisfied that this meets U.S. interests, and we’ve always been very focused on that fact.

Nonetheless, I would simply say that this whole negotiation of the treaty is not completed yet. We still have an endgame to play out in Rome. And we have always, from the very beginning in these negotiations, understood that there is no real magic bullet for complete protection of American citizens. We have to find ways within this statute to reasonably protect American citizens, who need to be accountable for their actions. There’s no question about that. We have always emphasized, however, that, given the U.S. federal criminal system and our military justice system, we have extraordinary systems of law in this country to which we hold Americans accountable, and we want to make very, very certain that, if this court is established, our systems kick in first with respect to any American citizen. And the likelihood is that, if we can achieve that, then there’s a very good prospect that our systems will take care of many of the concerns that have been raised about exposure of Americans to an international forum, because Americans simply won’t get to the forum. They’ll be dealt with nationally or in our military justice system.

At the same time, we’ve always argued that the Security Council has a key, significant role to play in the work of this court. It must be there as an enforcement arm, it must be there as a referral arm and it must be there as a body that can fulfill its charter responsibilities to the maximum. And we have to remember that those charter responsibilities are not covering everything that can possibly be undertaken in international armed conflict or in international politics today. The charter vests a certain range of responsibilities on the Security Council, and we cannot amend the U.N. charter to provide the Security Council with more power than it actually has under the charter. But that being said, we need to recognize fully the Security Council’s role in fulfilling its charter responsibilities, and we need to make sure that that’s very compatible with how this court operates.

Ms. CROSSETTE: Thank you. Does he get one minute?

Mr. THIESSEN: Let me ask Mr. Scheffer a question—hypothetical case of Libya. Let’s say the Libyans decided to seek an indictment. The way we would prevent an American from being tried is because we have this wonderful judicial system here and, obviously, anyone who committed a war crime we would try. What if the Libyans tried to indict former President Reagan? Or let’s say someone tried to indict President Clinton on some sort of war-crimes charge. I suspect that we would not send a prosecutor to do the job in a U.S. court; we would decline to prosecute. So therefore, that would be the opening to an international court to proceed with the case, would it not? There’s no way we can prevent that from happening.

Amb. SCHEFFER: Well, first of all, the question is, what would Libya—Libya would have to refer the entire matter of that conflict to the International Criminal Court, and it would not be Libya that brings a complaint against any particular individual. It would have to be the prosecutor of the court that would actually investigate and file the complaint. So Libya’s out of the picture. The moment it refers the entire matter, let’s say a bombing, to the court, Libya steps aside. It has no further influence on the proceeding. At that point, it’s up to the prosecutor to investigate.

Transcript ends.

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