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Session Two: U.S. Engagement in the International Legal System

Speakers: Greg Craig, Partner, Williams & Connolly, and Senior Adviser, Barack Obama Campaign, and Nicholas Rostow, University Counsel and Vice Chancellor, Legal Affairs, State University of New York, and Adviser and Surrogate, John McCain Campaign
Presider: Cynthia McFadden, Co-Anchor, Nightline, ABC News
October 17, 2008
Council on Foreign Relations


This session was part of the CFR Symposium on International Law and Justice, which was made possible through the generous support of the Jolie-Pitt Foundation.


New York City, New York

CYNTHIA MCFADDEN:  Welcome back to session two.  I'm Cynthia McFadden, the co-anchor of "Nightline."  And I must say, looking at all of you here at the Council on Foreign Relations is a heck of a lot scarier than looking in the camera to 4 million viewers.  Make of that what you will.

Unlike everyone else who has sat up here today, I am not an expert in this area, though I must say I have been a witness to much of the effects of unmitigated atrocity.  I'm just back from Sierra Leone for a piece I'll be doing on "Nightline" in the next week or so, and was about a month ago in Rwanda, so have seen what many of you have seen, the humanitarian costs when intervention does not happen.

The topic for this panel is -- let me put on the specs -- U.S. engagement in the international legal system.  The two questions we're going to try to look at broadly is, what can we expect of the next administration both in terms of its response to mass atrocities and its position towards international law more generally, and then what steps will the next president take to shape the international legal order and America's place within it?

We have two campaign representatives, advisers to both campaigns, though I don't think we should hold them tightly -- every word out of their mouths would be the words out of Senator McCain or Senator Obama's mouth.  We'll try giving them a little leeway with that, since we don't want to have either of them deported.  (Laughter.)

We have Greg Craig next to me, who is a partner at Williams & Connolly and a senior adviser to the Barack Obama campaign.  Next to him is Nicholas Rostow, university counsel and vice chancellor of legal affairs at the State University of New York who -- you guessed it -- is an adviser to the John McCain campaign.

Now, I was a little worried before I sat down.  Out in the green room, the two of them told me that they completely agreed about all these issues.  Craig said Rostow had a position in the Obama administration, and Rostow was heard to mumble that he thought, depending on how things went, Craig looked pretty good in the vice presidential slot.  (Laughter.)

GREG CRAIG:  I didn't know it was open.  (Laughter.)

MCFADDEN:  I usually leave my hair up for these things, but I thought, with the glasses, it was a political statement.  (Laughter.)

So let me begin with an observation.  Gentlemen, genocide has been outlawed by treaty since 1948.  But in the past 50 years, mass atrocities have continued with regularity, accounting for as many as 20 million deaths in 29 countries, which makes me wonder whether or not international law is a bit limp in this area.

So the question is, is there an existing legal framework in place that can be effective in stopping genocide?  Looked at another way, is it the legal framework that's lacking, or our will to use it?

Let me start with you, Greg.

CRAIG:  Well, my view is that the political will has been absent and that we need leadership not only from the United States government but from the international community, more leadership; and that the structures are there.  They need to be strengthened.  They need to have more juice in them.

But my own view is that our failure in Rwanda and our continuing failure in the Sudan and Darfur has to do with political will and that none of the efforts that might have prevented what happened in Rwanda, and was predictable in Rwanda, were taken.  There was a shocking absence of energy and effort in that respect.  And I think the same is true in Darfur.

And I know that if Senator Obama does get elected president of the United States, he is going to make an enormous amount of effort to change the situation and do something about it, because he feels it very keenly.

MCFADDEN:  But as a general matter, the legal structure exists to be able to act.

CRAIG:  I think so.  Let me give you an example in Kosovo.  It seems to me that Kosovo is an example that we might cite for the following proposition.  You do not need to have a United Nations Security Council resolution in order to act.  And the efforts to get that resolution failed because of the Russian veto.  But you were able to get a series of resolutions from the Security Council that didn't necessarily authorize force that made the NATO activity in Kosovo, I think, legitimate.

And what we're talking about here is legitimacy, and that's the whole point of international law and international structures.  It's to set up a very bright line between what kind of conduct is just unacceptable in terms of the international community and why it's a great value to us is if there is a consensus that this kind of conduct by a violator of international law is reprehensible, then it's not just the United States who reacts to it.  It's the international community.

So it legitimates the action that the international community takes, whether it's sanctions or whether it's the use of force or whether it's alternative actions.  But absent that international law, you either do nothing or the United States does everything.  Those are two options that are unacceptable.

So I do believe that the international law is there, that the structures should be strengthened, but it's a matter of political will and determination, and I think courage, to do these things.

MCFADDEN:  Nick, is he right?

NICHOLAS ROSTOW:  Well, you know, it's interesting, if I can disclose that you were prep man.

CRAIG:  Oh, yeah.

ROSTOW:  Greg was stand-in for Senator McCain in preparing Senator Obama for the debates.

CRAIG:  For the last month I've been John McCain.  (Laughter.)

MCFADDEN:  So he can do both sides of this.

ROSTOW:  That's right.  I'm going to leave -- (laughter) -- and let him -- he can correct me if I'm wrong.  But I don't think that Senator McCain would disagree with a word he just said.  Certainly I would not.  And I think that political will is and always is the issue in which a situation reaches the point where military action is required to stop it, where all the wonderful array of measures that Ed Luck laid out in the previous panel have been tried or they've failed or they've not been tried and things have just spun out of control, if you will.

Then the question arises inevitably, how many Marines is it worth -- U.S. Marines, French Marines, British Marines, whomever?  And that's a pretty tough question.  And so I think that any president would have to deal with and address the situation on a case-by-case basis.

MCFADDEN:  So that would be a political calculation.  But I hear agreement between the two of you, and hence, I suppose, between the two candidates, on the fact that a legal structure does exist and is usable in such circumstances.  So let me move forward --

CRAIG:  Could I tell you where I think we do need help is in the prevention situation.  The prevention situation, which was discussed in a very interesting way up here, is the way you head off -- you anticipate, head off and prevent genocide, or --

MCFADDEN:  I'm going to get to that.

CRAIG:  Okay, sorry.  (Laughter.)

MCFADDEN:  I ask the questions.

ROSTOW:  He's gonna play moderator too.  (Laughter.)

MCFADDEN:  You know, my first boss in television was Fred W. Friendly, and you all are, may I say, old enough so I don't have to explain, as I usually do, "You know, he's that guy George Clooney played in the movies."  Fred Friendly used to say that he made ignorance the cornerstone of his career, and I'm hoping to do the same.

So, second question:  Is it fair to say that there are -- is it fair to say that there are many in this world who believe the U.S. is willing to sit on the sidelines when it comes to the promotion of international justice?  And I want to -- I think this perception question is important before we get to the specifics, because in some ways, in the ways that the candidates see this question, will determine some of the answers to the questions.

So, number one, is that fair?  Is that an accurate view of the U.S.?  And two, does it matter?

CRAIG:  Why don't I let you go first?

ROSTOW:  Right.  I think that -- unfortunately, I think it is an accurate view.  That is, it is accurate to say that a lot of people have this view and a lot of governments have this view.  I don't think it is an accurate view.

MCFADDEN:  Of the actual United States will.

ROSTOW:  Right.  There are many examples from the current administration's actions that I could cite.  But Senator --

MCFADDEN:  Cite one.

ROSTOW:  Well, for example, in the whole issue of dealing with Darfur, in which the United States -- but for the United States, nothing would have happened.  We wouldn't be where we are, even where we are, because --

MCFADDEN:  I was going to say, a lot of people would say, "Where are we?"

ROSTOW:  Well, a lot of effort has been going on to shine the spotlight on Darfur, mobilizing the African Union, mobilizing humanitarian assistance, et cetera; a lot of things short of military action.  And all of those reflect very strong American leadership.

I mean, just as an example of imagination, Senator Danforth, when he was U.S. ambassador to the U.N., took the Security Council to the region.  That was a very important step in terms of pushing a peace process, faced by threats of vetoes by China and Russia that if the word "sanctions" appeared in any resolution, that resolution would not see the light of day.

So -- but at the time, we were -- as everybody knows, this administration was very hostile to the International Criminal Court but was offering alternative suggestions for holding perpetrators of atrocities accountable.  It was the U.S. government which said genocide had been committed and was being committed in Darfur, not the United Nations --

MCFADDEN:  I know I asked --

ROSTOW:  -- and insisted on accountability.  And Senator -- because I'm representing the campaign, let me just say that Senator McCain has made it very clear that he would like to see the United States find a way to be -- to work with the International Criminal Court, and indeed, voted against the American Servicemen's Protection Act --

MCFADDEN:  And we will get in detail to the ICC --

ROSTOW:  -- that Senator Biden voted for, I would just mention.  (Laughter.)

MCFADDEN:  Just let me finish on this perception question.  Does it matter, in your view?  Does it matter that we have this reputation internationally?

ROSTOW:  It does matter.  I mean, the United States is a country of law.  We are -- that's who we are.  That's what ties us together.  It's what defines Americans as Americans.  And it defines the way our government knows how to act, America's citizens know how to act.  Our armed forces are trained to act according to the law.  So if we are accused of being international lawbreakers or indifferent to international law, that is a fundamental criticism of Americans at their core.

There's another reason why it's important, which is, as Richard Haass said in his introduction, international law is essential to any system of peace.  And whether -- starting with the Napoleonic wars and World War I and then World War II, I mean, the need for international legal regimes that enjoyed common acceptance was taken as a given that didn't need to be explained.

And in a world of nuclear weapons, it is even more important.  We seem to forget that we're still in a world of nuclear weapons.  But we have to keep -- we have to have agreed rules about the use of force, about international behavior, or we're up the creek.

MCFADDEN:  So Greg, let me turn the dial a little bit.  Let's agree that the world has this negative perception of U.S. actions, of sitting on the sideline.  Is it a deserved reputation?

CRAIG:  Absolutely.  I mean, I think that in the last eight years this administration has made it quite clear that it prefers to explore and protect its national objectives and its national interests unilaterally rather than multilaterally.  It has done that, I think, at great cost to our standing in the world.

I think the distractions of the war in Iraq has done enormous damage to our moral authority in the world, to our capacity to even work in Darfur.  I have a different view of our role in Darfur.  I think, in fact, there were many people that were very close to the United Nations in the early days and said, and I quote, "It is the Americans and the Chinese that are the biggest problem to us making progress in Darfur," unquote.  That was a very high official in the United Nations.

To be compared to the Chinese in dealing with a genocidal situation, to me, was shocking.  And it came from a person who was in the know.  Now, the problem with the Bush administration is that has been taking advice from people like John Bolton.  And John Bolton does not like international arrangements.  He doesn't like multilateral organizations.  He doesn't like international institutions.

And the reality of the situation is the way in which this international structure was created came out of the multilateralism of the Second World War.  The Atlantic Charter became the charter of the United Nations.  And during the Second World War, the question of whether you were going to go it alone unilaterally or whether you were going to sign up with a multilateral alliance, that was not an open question.

The option of unilateralism in the Second World War wasn't there.  You formed up with your friends and your allies and you made that alliance work if you were going to succeed against the fascists.  The same was true against the communists.  So there was an imperative of multilateralism that created all these institutions that dealt with trade, dealt with the economy, dealt with crime, dealt with, you know, security threats.

Now, what we've got today, in a funny sort of way, is the same thing, because we've got a global world, and we can't solve alone the threats that we have to deal with, like climate change or terrorism or, you know, non-state actors who strike at American citizens across the world.  We've got to work with our allies.

And so the notion that we can go it alone, "It's my way or the highway," which seems to me to be the Bush-Bolton-McCain style of international living, is a mistake.  And we pay a very, very high price, and the world pays the same price, because we're not as effective in places where we should be effective, like Darfur.

MCFADDEN:  Do you want to reply to that?

ROSTOW:  Well, I think --

CRAIG:  I'm partisan, Nick.

ROSTOW:  That's all right.  It's okay.

MCFADDEN:  You're supposed to be.

ROSTOW:  I'm supposed to be too, (but I'm not ?).

MCFADDEN:  (Inaudible.)

ROSTOW:  I think that, insofar as I understand Senator McCain's positions, he is not a "My way or the highway" sort of a fellow, but rather deeply understanding of the role of multilateral institutions, the need for a multilateral approach to transnational problems.

He is also aware that some of our international institutions get jammed up, whether it's over Kosovo, where, in effect, you needed a league of democracies to deal with the Kosovo problem, or some other issues.  I mean, one cannot be in the situation -- as my father used to say, the law is not a suicide pact, and neither is membership in the international system.  And therefore, you can't be incapable of action on matters of vital interest to the United States, of which there aren't that many.

MCFADDEN:  So what's -- the devil's in the details in all this, because I presume that both candidates believe in the responsibility to protect -- stop me if I'm wrong -- I believe that we don't have anybody arguing for genocide, as we heard the previous panel.  There's no -- (inaudible).

CRAIG:  That would make news.

MCFADDEN:  That would make news -- (inaudible) -- not that there's anything against making news.  But, in fact, as we heard in the previous panel, that sovereignty is a condition of behavior, if you will.  I think I stole that directly out of something on the Council's website.  But it really rang true with me, that the notion that the responsibility to protect really puts on nation-states the responsibility to act responsibly to be able to control their own sovereignty.

So let's talk about the details.  Then is it justified to intervene -- let's take out -- the old notion was you could intervene when self-defense was involved and there was some national interest.  We'll take that off the table now.  The General Assembly, by the way, has not been particularly helpful in this.

I pulled this quote.  The General Assembly says that you're justified to intervene under the (rights of responsibility ?).  Quote:  "We are prepared to take collective action in a timely and decisive manner through the Security Council on a case-by-case basis."

So what case?  What basis?  Before we go to Darfur, let's talk about Rwanda.  In retrospect, was the U.S. correct to sit on the sidelines?

CRAIG:  That's an easy one.  No.  And under any circumstances, I think the international community can be held responsible as well.  The wonderful thing about the 2005 resolution that came out of the General Assembly was the rather clean definitions that it set forth.  It doesn't deal with the details, I mean, but it does say that sovereign nations -- of the sort of Westphalian nature, sovereign nations have an obligation to protect their own citizens.  And if they do not carry out that obligation, then the international community has the right to go in and protect --

MCFADDEN:  So why doesn't that take us into North Korea?

CRAIG:  Well, as a matter of fact, I think that that particular -- all the work that went into preparing that resolution almost explicitly excluded places like North Korea, which had functioning governments that the international community --

MCFADDEN:  (Inaudible.)

CRAIG:  -- that the international community came to assist when there was a famine, when there was starvation.  The international community --

MCFADDEN:  But you do take the point.  It's tricky.  You know, an old producer of mine used to say we should do a television program called "It Ain't That Simple."

CRAIG:  But Cynthia, remember the lines in there, the words that said "case by case"?


CRAIG:  So --

MCFADDEN:  Well, that's one case.  We can put North Korea in the non-intervention pile.

CRAIG:  There's a bit of -- there's a lot of pragmatism that's required in something like this, and you can't just do it on the basis of some ideological, cold principle.  But the notion we'll justify under certain circumstances when it's possible to do that kind of intervention -- you know, the responsibility to protect --

MCFADDEN:  So on Rwanda, Bill Clinton famously has said it's the great stain on his presidency.  We won't make any jokes about "stain."  (Laughter.)  Sorry.  Sorry.  That was awful.  Take that.  Erase that.  That was off the record.

Bill Clinton has said, in all seriousness, this is a great failure.  He's apologized to the Rwandan people, to President Kagame, that he should have, in fact, forced the U.S. to intervene.  President Bush, when he took office, said no, it was proper to sit on the sidelines.

Where is Senator McCain on this, as far as you can tell?

ROSTOW:  Well, Senator McCain, were he to be elected president, would definitely take the view "Not on my watch."  And indeed, this administration, whatever one thinks of it, took the view "Not on our watch."

MCFADDEN:  But did it evolve over time, though?

ROSTOW:  General Clark's successor at NATO made -- sent many missions to Burundi and other potential spots to figure out what he would have to do in the event atrocities broke out and the U.S. military had to go in to put a stop to it.  So --

MCFADDEN:  So in the Rwandan case --

ROSTOW:  In the case of Rwanda or another such issue, I think we can be confident that a McCain administration would mobilize diplomatic and other instruments of international life to keep the spotlight on potential spots where genocide might happen or large-scale atrocities might happen and work very hard to shore up the institutions to prevent them from happening, and in the absolute worst case, if something happened, to participate in putting a stop to it.

CRAIG:  I've got a precise McCain quote.  As an American, he was ashamed of our failure to do something in Rwanda.

ROSTOW:  Thank you.  I knew I could count on you.  (Laughter.)

CRAIG:  Well, it's true.  He said that.

ROSTOW:  No, no, I'm serious, because Greg knows McCain's positions better than I do.  (Laughter.)  So I meant that in a positive sense.  I was not being derogatory.

MCFADDEN:  But, you know, so what's so -- so, help me understand, though, because a Democratic president, a man deeply committed to human rights and justice, did let it happen on his watch.  The international community did let it happen On their watch.  And, with due respect, gentlemen, it's easier to sit here now and say, 'Of course, not on my watch,' then to actually -- it ain't that simple, correct?

ROSTOW:  (I) take your point.  (I) take your point.

MCFADDEN:  So, let's talk about one that's going on right now, both -- as I understand it, both Senators McCain and Obama have said that Darfur would be a priority in their administration.  I think Senator Obama has said it would be a top priority.  So?

CRAIG:  Well, you know, you're asked me?


CRAIG:  I can't tell you, Cynthia, exactly what he will do if he's elected president of the United States, in terms of Tuesday, and Thursday and Sunday.  I can tell you he will be talking to the NGO community, as well as to our military about it, as well as to the United Nations, and others.

Interestingly, in the trip -- the famous trip he took to Afghanistan and Iraq, and then the Middle East, and then came back through Berlin, Paris and London -- with each meeting of the three leaders of those last three countries, two topics came up.  One was Afghanistan, which is understandable, but the other was Darfur.

And I think that they all -- all these leaders felt that they had not done enough on Darfur; that there had to be a better way of going about it.  And I think Senator Obama, when he -- if he is elected president, will take advantage of those early conversations to try to focus on it.

One of the problems that's happened, because of the delay in dealing with this, is that it's no longer just simply a problem of Khartoum and the Janjaweed.  There's now the rebels.  And so with the rebels moving, it's become much, much more complicated and more difficult, I think, to solve.  And we've got to, I think, come up with some very simple principles that start protecting people's lives in those internally displaced camps.  And I think that's what he's going to be focusing on.

MCFADDEN:  So, is the military option on the table, as far as you -- (inaudible) --

CRAIG:  The use of military resources is certainly on the table.  Issues of air cover, issues of military support for relief, and security for relief exercises is certainly on the table.

MCFADDEN:  And that's realistic, with the economic environment, with being hunkered down in two wars already?  Is that realistic?

CRAIG:  Well, first of all, we're going to end one of those wars, and we're going to end it in the period of about 16 months, to the extent we can.

By the way, that's another question, because protecting people's lives -- the civilian population, during the period of our redeployment out of Iraq; preventing genocide from occurring; trying to introduce the international community into Iraq, in a fashion that is acceptable to the Iraqis, to replace the American troops -- all of these challenges are going to be there too.  But, hopefully, we will begin the process of ending that war responsibly.

MCFADDEN:  One of the things Senator McCain has advocated for is a no-fly zone.  Does that make -- (inaudible) --

ROSTOW:  In -- in Darfur?

MCFADDEN:  In Darfur.

ROSTOW:  Well, it makes perfect sense.  And it's one of those things which could have, and should have been done a long time ago.  And I've always believed that if the United States had said, we'll send six helicopter gunships who will join us, a lot of people would have joined us.

And it's one of the peculiarities of international reality is if the United States says -- if the American president says, I'm going to do "X," will you join me?  A lot of people would say yes.  And Somalia is a good example, in 1992.  And I think Darfur was a terrible missed opportunity --

MCFADDEN:  You know, one of the problems is --

ROSTOW:  -- (inaudible) -- to do something, and the Pentagon was totally opposed to it.

MCFADDEN:  One of the problems --

(Cross talk.)

CRAIG:  We have to be prepared --

MCFADDEN:  -- that you allude to --

CRAIG:  -- to be careful, putting American troops into another Muslim country.  I mean, it's not -- it's not quickly done, or easily done.  And, I think --

MCFADDEN:  Even if civilian lives -- (inaudible) -- ?

CRAIG:  Well, I think you've got to explore all sorts of ways of doing it, and maybe -- I mean, the Arab League is dying to help out.  The Arab League is trying to be relevant in this world, and maybe the Arab League is something -- or the Egyptians, or you know there are other ways to work these objectives.

But, I think the use of military force -- and that's why I said military "support," more than American combat troops going into another Islamic nation, I think that's difficult to do at this point.

And may I just say, that one of the problems of leadership inside of the Sudan is we've been distracted in Iraq.  We've had all our resources, and all our attention and all our authority focused on Iraq.  And we paid a price, not only because of our standing in the world has declined, but just, materially-speaking, our attention has been elsewhere.

MCFADDEN:  Would you agree with that?

ROSTOW:  There's no doubt about it.  And I think that -- but, I also think it's, you know, it's interesting that you say the Arab League is now so eager to be helpful in the Sudan.  That's -- (laughter.)

CRAIG:  No, I didn't say Sudan.  Just generally.  'We're knocking on the door, how can we help?'  'Let us -- '

ROSTOW:  Not in the Sudan, at least as far as I'd -- (inaudible) --

MCFADDEN:  Let me ask another question about the tools in the toolbox.  We heard some very helpful things in the first panel, but how about public humiliation?  I'm just wondering whether Mia Farrow was -- accomplished something that governments, powerful governments haven't been able to do.

Is it fair to say that public humiliation, the Chinese -- not even wanting to have the "genocide games," actually started to move slightly (in regards ?) -- ?

CRAIG:  You know, I have enormous admiration for what she's done on this issue.  She has done something I never thought a celebrity would be able to do.  And she's seriously pursued it, and reported back an enormous amount of information by going into the region and actually being there -- taking pictures, interviewing people and coming back and reporting.

Seriously, I think she's got an enormous amount of respect.  And one of her great achievements has been by shaming the Chinese.

MCFADDEN:  (Inaudible) -- would you agree?

ROSTOW:  Yeah -- no, absolutely.  I mean, I don't think there's any doubt about it, the Chinese did not want to look bad.

MCFADDEN:  So, let's talk about the International Criminal Court.  No conversation, of course, of international law -- (inaudible) -- is complete without a hard look at the U.S. role.

Before we get -- because we're talking about Darfur, we should, of course, talk about the warrant for Bashir, but before we do that, is it fair to say that much of the world sees the U.S. as holding itself apart from -- in terms of its own international responsibilities, this sort of notion of exceptionalism, fueled, I would argue, in many ways, by our refusal to join the ICC?

Should the U.S. change its position with regard -- either one of you?

ROSTOW:  Well, Senator McCain, first of all, has taken the view, and said publicly that he would like to see the United States find a way to join up with the Rome statute, but he has concerns about the way it's set up.  And those concerns simply don't get addressed.

MCFADDEN:  Elaborate on the concerns.  The concerns --

ROSTOW:  The concerns, fundamentally, have to do with the -- leaving aside questions of due process, of the sort that is Constitutionally protected in this country; leaving aside the question of whether or not a prosecution could be politically motivated, with political consequences -- purely and simply, having an international court and prosecutor decide whether U.S. decisions about investigation, prosecution, sentencing were adequate, in their view, such that they would not pursue another case, is, in my view, and I would expect it to be in Senator McCain's view, unacceptable.


CRAIG:  A little bit of history here.  I think it was two weeks before the end of his last term of office, President Clinton signed --


CRAIG:  -- the ICC.  He did not send it up to the Congress before he left office.  By the way, David Scheffer deserves an enormous -- and he's still here, an enormous -- there you are -- (laughs) -- I can remember getting phone calls from David Scheffer, because I was -- had worked in the White House after I left the State Department, and David Scheffer was working the phones to get the White House to sign the ICC before the Clinton administration left.

But it was signed -- and David should be the source of this rather than me, because I'm not the authority at all -- but my understanding was it signed with some concerns about these issues having to be worked out.  Of course, when the Bush administration took power there was not an international agreement that they liked --


CRAIG:  -- so we just, (seriatim ?) went down, and doing everything -- undoing everything that had been done:  the ABM, the CTBT, everything that -- and Kyoto, everything that had been worked on for the last eight years, including the ICC, was thrown out.

And Senator Obama's position on this -- of course, this is a senator who has had a good deal of experience teaching Constitutional law, so he's sensitive to, I think, all the issues -- (inaudible) -- a law professor would be aware of.  He is very eager to review the track record of the ICC as it's functioned since its creation in the Rome statute.

And I'd bet, when he looks at the track record -- and you might disagree, but you might agree also that, by and large, that record has been excellent; it's been cautious; it's been conservative; it has taken investigations very seriously -- so, I think he will look at  the track record.

He will also consult with the American military, because, if the truth be told, it is the American military that is the primary problem for American compliance, or signing up to the ICC, again.  And he understands that the American military has some concerns about it, and he's not going to jump ahead of consulting with them on that to make a decision.

I will say that he has supported the ICC investigations that are underway, I think in the Sudan, and elsewhere, and he supports the prosecution of Bashir, the president of Sudan.

ROSTOW:  Can I just --

MCFADDEN:  Please.

ROSTOW:  -- jump in?

First of all, Senator McCain also supported the ICC in the Sudan and Bashir, but let's go back to -- I think it's very important that listeners, the audience, understand and recall what President Clinton did in January 2001.  He authorized the signature of the Rome Statute and then said he did not recommend that his successor sign up to it and he did not recommend that the United States become a party to it.  This is a treaty that does not allow reservations, and so it was a kind of nice catch-22 that he put the country in.

CRAIG:  I see Ambassador Scheffer shaking his head.

ROSTOW:  But I remember --

MCFADDEN:  May we have a mike?  Do you want to -- we'll let you -- do you want to say something, David?  Oh, look, here comes a microphone.


MCFADDEN:  I think so.  Try.

SCHEFFER:  Hello.  It's never on.  I respect that point, Nick, very much, but the fact is, yes, in the signing statement on December 31st, 2000, the president said a lot of reasons why we were signing the accord because we believed in it, we believed in pursuing atrocity crimes and we believed in the institution of the court to achieve that.  He also said, though, that we have some fundamental concerns about the United States' relationship with the court that are going to have to be dealt with before he would recommend that his successor submit it to the Senate for ratification.  It wasn't, don't ever do this.  It was, we've got more work to do.  And in fact, we had teed up all sorts of proposals, in collaboration with our allies in 2000, to play out in negotiations in 2001 to further address those concerns, and we played those out right to the first week of December when we still didn't know the outcome of the election.

So that had been teed up, not as a definitive don't ever submit to the Senate, but we've still got more work to do before this has a chance before the Senate.

MCFADDEN:  Thank you.  I want to go just back to the principle.  Take off your lawyer hat for a minute and just see it as a moral matter.

CRAIG:  I hadn't ever put it on.  (Laughter.)

MCFADDEN:  Okay.  This is how you are as a civilian, huh?

CRAIG:  Yeah.  (Laughter.)

MCFADDEN:  You know, I graduated from law school and I am such a tribute to the bottom of the class.  (Laughter.)

CRAIG:  You're what made Nick Rostow possible.  (Laughter.)

MCFADDEN:  There you go.  Columbia, not MIT.  So -- I interrupted myself so I'm not -- no, I know what I was going to say.  I mean, as a moral matter, how does it work?  I mean, I understand due caution, I understand consultation, but as a moral matter, tee it up and answer it for me this way:  How can the U.S. expect everybody else to submit to the will of the ICC -- it's good for everybody else but not good for us?  Isn't that where -- I mean, all the legal stuff aside and all the due caution aside and all the theory about world prosecution aside, isn't that essentially what the American people want to understand, you know, why should it apply to us?  We're exceptional.  We're something special.  We have a Constitution.  That's good enough.  We can handle it.  The rest of the world we're not so sure about.  Is that kind of it?


MCFADDEN:  Okay.  (Laughter.)

ROSTOW:  I mean, I think it's a very important point that you've made, and I think that with some tweaking of some serious amendments one could imagine an ICC the United States could join.

MCFADDEN:  Really?

ROSTOW:  But --

MCFADDEN:  So tell me, please.

ROSTOW:  Just for an example, American soldiers serving in Central Europe or in the Balkans, if there are any, when there were American soldiers they were subject to the jurisdiction of the international criminal court for the former Yugoslavs.

MCFADDEN:  And why shouldn't American servicemen, if they commit wrongdoing, why shouldn't they be subjected to the same kind of international review that we want everyone else to be subject to?

ROSTOW:  Well, we would -- the United States' position under this administration has been they should be.  That is to say, American soldiers who commit war crimes, violations of the Uniform Code of Military Justice, are investigated and prosecuted.  We just do not think that there ought to be another court that gets to sit in judgment on that investigation, prosecution, and sentence.

MCFADDEN:  Well, we say we should do it, right?

ROSTOW:  We should do it, and that should be true of others too in that if you arrogate to a body which is not part of the United States the authority to sit in judgment on U.S. judicial processes and prosecutorial decisions and sentencing decisions --


ROSTOW:  -- that that is fundamentally contrary to something American law can tolerate.  Now, it doesn't mean one can't imagine a regime where these issues aren't addressed, and the United States, after all, was a strong advocate of war crimes trials after World War I, after World War II, and so on.  It's --

CRAIG:  It has supported all the war crimes tribunals that have been created with respect to the former Yugoslavia as well as --

ROSTOW:  Rwanda, Sierra Leone --

MCFADDEN:  So you take a crack at my question.

ROSTOW:  -- the whole bit.

CRAIG:  Well, putting the ICC aside just for a minute, I've got a different dilemma for you.  Many European courts take universal jurisdiction for cases involving crimes against humanity or genocide even without the ICC.


CRAIG:  You could be tried in Spain or you could be tried in France.  And I predict that the next administration -- I hope it's an Obama administration, but the next administration is going to be confronted with the following problem:  Former Secretary of Defense X or Y, former Secretary of State Y or Z travels in Spain and is prosecuted in Spain for presiding over torture.  That's a war crime.


CRAIG:  Torture, by definition, is a war crime, and they have universal -- these are our allies, our friends and our partners in the international community and they may be prosecuting, either civilly or maybe even criminally, some of our leaders for the polices that they've pursued over the last eight years.

MCFADDEN:  So what should the --

CRAIG:  So that's a realistic possibility.

MCFADDEN:  Okay, and then President Obama will say?

CRAIG:  Well, you know, that would be -- it would be ill-advised for me to try to predict what Senator Obama would say, but I would say that he is upset that this country did engage in torture, that this country did, as a matter of policy -- it now appears at the very highest levels -- authorize the use of torture.  On this, by the way, I think Senator McCain and Senator Obama are in agreement and Senator McCain has shown a certain level of courage standing up to his party and his president on this issue.  I can't tell you what a President Obama was going to do on it; I can tell you what he thinks about torture.

MCFADDEN:  But you do understand the dilemma that the persistence of this understandable position -- understandable position -- the U.S. position at base I suppose is we have a judicial system that works pretty well and we will in fact deal with these issues as they come up in appropriate forum.  You do understand, however, what that does to the perception of the U.S. around the world in terms of international law.

ROSTOW:  Well, it is if that's the litmus test, you know.  And I was at the United Nations during the great ICC debates in 2002 and '3 and I haven't seen passions run so strongly on anything since the Vietnam War.  And diplomats ran into each other, sort of threw shoulder blocks at each other, used four-letter words.  It was the ugliest thing I've seen, as I said, since Vietnam.  So there's no doubt that passions run very strongly around this.

MCFADDEN:  I want to ask a final question about the indictment being sought for President Bushir, and I want to -- and then --

(Cross talk.)

CRAIG:  -- outstanding.  He has been charged.

MCFADDEN:  So the president of the American (sic) Union, the president --

ROSTOW:  Nope.

CRAIG:  You're mistaken there.

MCFADDEN:  No, I don't think so.  I think they've --

ROSTOW:  I think they've asked for an indictment and the court is deciding.

MCFADDEN:  Right, and the court is considering whether or not to bring the indictment.  Ha!  (Laughter.)

ROSTOW:  You weren't at the bottom of the class.  (Laughter.)

MCFADDEN:  I just got a promotion.  There you go.  No, I just do my homework.  The question that the president of the American (sic) Union has said --

ROSTOW:  African Union.

MCFADDEN:  -- African Union has said the indictment of Bushir at this point in time will complicate the deployment of peacekeepers and the management of the humanitarian crisis in Darfur.  How do you see it?

CRAIG:  I can see that being a problem, to be honest with you.  You know, I'm not as clear-cut on this as Wes Clark is.  I was working for Senator Kennedy in the Senate during the Noriega period of time and there was an ongoing and a very serious effort to negotiate a way where he would depart, give up the leadership of the country, essentially in la guardia (ph), and right in the middle of this they returned the drug indictment in Florida, which complicated a negotiation that might have avoided the need for the invasion and might have saved hundreds of Panamanian lives and half a dozen American lives.

So I think it's a case-by-case situation and it's not open and shut, as far as I'm concerned, that it necessarily advances the cause or the interests of the people at stake to charge people with war crimes at the moment you're trying to solve the problem.  Now, you know, for example, Zimbabwe's a different situation.  This is deteriorating in such a bad shape -- you know, if I were in the International Crisis Group or in the policy planning staff I would say there's, you know, five or six places that potentially could fail in dramatic ways with carnage, and Zimbabwe is one of them and I don't know that the international community is reacting effectively to that.

MCFADDEN:  Nick, what's your point of view on the Bushir indictment?

ROSTOW:  Well, I completely agree --

MCFADDEN:  We're going to get to hear this from the man himself in a moment, the chief prosecutor.

ROSTOW:  I mean, I completely agree and I think this is one of the reasons why --

CRAIG:  That it might be a complication.

ROSTOW:  Yes, absolutely.  In fact, it is a complication I am assured by the special envoy for Sudan.  You know, it's one thing to have a prosecution of people after a country has been conquered -- like Germany after World War II -- and those guys are not participating in any political process.  It is quite a different matter if you're trying to broker a political process where the players who have to be part of that process have blood on their hands.  Now, Kofi Annan gave a remarkable speech in September of 2004, saying there are certain things that just put you off the table, like genocide, but in order to achieve peace, maybe justice has to wait a little bit.  And the one thing that is clear from the experience of South Africa, Guatemala and other places is that there is no cookie-cutter solution to this.  One size does not fit all, and the hunger for justice, however understandable, may be delayed.

Just to give you an example, if Spain had tried to conduct investigations and prosecutions over what had happened in the civil war until very recently, the civil war would have broken out again.  So --

MCFADDEN:  You know, but it's interesting -- so if you ask the judges who are now called upon to make the -- either issue the warrant or not for the indictment, you ask them then to consider the political situation on the ground, the humanitarian situation on the ground, and not just the legal matter of whether or not a case has been made that a prosecution is warranted.

ROSTOW:  You know, one of the first things that Ocampo did when he became prosecutor was to create a political advising office to address exactly this issue, which does raise the nice question as to whether -- as to just how political an animal the ICC necessarily is when it goes into situations of ongoing conflict and fluidity.  It's one thing if the bad guys are out of power; it's quite a different matter when they're still in.

MCFADDEN:  Should we let the audience ask some questions?

CRAIG:  Please.

MCFADDEN:  Do you have questions?  Yes, sir.

QUESTIONER:  Mort Halperin from the Open Society Institute.  I don't know if this is on.  I want to get into this debate and make a comment and, if I may, ask them to comment on it.  I think it is true that it's complicated and has to be done on a case-by-case basis.  And the other thing is I think we have to be very suspicious of the allegation that doing this will interfere with the peace process.  In fact, the history of the period over the last 15 years suggests the opposite.  When Milosevic was indicted exactly the same thing was said.  When the leaders of the Bosnian Serbs were indicted, exactly the same thing was said.  When the prosecutors started investigating the Congo people said it will complicate the civil war.  In fact, it simplified the civil war.

And I don't think the prosecutor should be charged with this.  The ICC treaty very clearly assigns this responsibility to the Security Council.  And the secretary general has said there may come a time when the negotiations reach a point where it's appropriate for the Security Council, as it has the power to do, can direct the stay of the indictment for a year, but I think nobody who looks at Darfur now thinks we're at that point.  We are near a settlement, and therefore I think the process should be allowed to proceed, and when it's appropriate the Security Council can consider whether to stop it.


CRAIG:  I don't disagree with that.  I mean, all I did, Mort, was to point out that there was one situation that I was familiar with where I thought the criminal prosecution complicated a solution that would have been a desirable solution and avoided the necessity of invasion.  I'm not sufficiently familiar with the history of Darfur to know whether there's anything underway that is sufficiently promising to hold out the hope that if the indictment is stayed a little while we might make progress in protecting people's lives.  I just don't know that.  But I do think that's a consideration that should come into play and if it's the Security Council that makes the decision I have no problem with that.


QUESTIONER:  Cora Weiss from the Hague Appeal for Peace.  I don't understand why if the two of you guys agree so much, why this is the most important election of my life.  (Laughter.)   But my question is --

ROSTOW:  No, the most important election of your life already took place.

CRAIG:  Uh-oh, another fight.

ROSTOW:  Nineteen-sixty-eight.

MCFADDEN:  Okay, we're not going there.  Go ahead.  (Laughter.)

QUESTIONER:  And I'm glad you realize I was voting then.  (Laughter.)  Neither of you has referred to the United Nations except with respect to a GA resolution, and actually from the print and the debates, neither candidate invokes the United Nations, as far as I know.  So, A, would your presidents -- how would your presidents deal with the United Nations -- on the assumption that it will still be there -- and, B, would they contribute funds to those agencies that deal with population and reproductive rights, which this administration has denied because of abortion issues?

MCFADDEN:  Gentlemen?

CRAIG:  Well, I correct Cora at my peril, but I think in my opening three sentences I made reference to the United Nations Charter, and I think that the United Nations Charter is the fundamental document that authorizes collective response and the collective use of force against aggression, from which all flows, and actually from which many, many successful U.N. operations have occurred -- probably not sufficient.

Senator Obama has talked at great length about the United Nations and its importance to a foreign policy that takes into account the rest of the world's views, and he has talked about the importance of being able to listen to other people, and he's talked about the United Nations as a forum for that.

On the specific issue of population, I think there would be no problem with him changing the policy that the Bush administration has had on that point because he has a different view of choice than does President Bush.


ROSTOW:  Yeah, I would assume that a McCain administration would maintain the policy but I don't know that.  But otherwise I would think that Senator McCain would not disagree with the words that Senator Obama just uttered.  (Laughter.)

MCFADDEN:  And it's still the most important election of --

(Cross talk).

MCFADDEN:  Warren?

QUESTIONER:  Nick, Senator McCain has proposed a league of democracy, as you mentioned it a while ago, and my question is about that.  Presumably -- or maybe by its own purpose -- it would exclude Russia and China.  It also would exclude some of America's major allies in the Mid-East.  How would it work?  How does Senator McCain think a league of democracies could really have an effect in a conflicted world where so many countries with which we disagree would not be members of that group?

ROSTOW:  Well, I think that, leaving aside the details of how it would work, the idea that there should be a formalized grouping of democracies has been kicked around, certainly heard in U.N. circles for a long time through more than one administration.  And I think the point here is that a community of states with the same values, the same fundamental approach to government by consent of the governed, with the same core interests would be a useful contributor to international peace and the solution to transnational problems because many of the logjams at the United Nations and other institutions occur precisely because of the points you make.  That is to say, other countries have different interests, different perceptions of interest.

And, interestingly, at the United Nations, on budgetary matters, the Europeans, the Americans, the Japanese and others working together were able to muster -- and it behooves -- contributions represent the overwhelming proportion of the U.N. budget.  We're able to block a number of egregious efforts in the budgetary process and actually induce some rationality.  So there is a basis for believing that such a league, such a community of states, could have a positive impact, and there is plenty of room for believing that where issues of peace and security are concerned, it's very, very important that the democracies act together.

So I think that's the fundamental motivator here.  One has seen too often at the United Nations a logjam over perceptions of interest, whether it's in Sudan or it's elsewhere -- Bosnia -- where the driver has been perhaps the character of the government as much as anything else.


QUESTIONER:  My name is Idd Beddei Mohamed (sp).  I'm from Somalia.  I'm the deputy U.N. representative of Somalia -- (inaudible).  I just want to make a brief comment on the issue of Darfur.  And if I carefully revisit the genocide in Rwanda, the reason we are having genocide in Rwanda is because the international community has intervened in Somalia, and with a good conscience.  Average Somalis understand that intervention and appreciate it a lot, but it abruptly withdrew on Somalia and could not intervene subsequently on Rwanda.  That is why we have genocide.  If you look in the United Nation's system now, the largest humanitarian cause in the world is not Darfur; it is Somalia.  And there is a school of thought that says Darfur is killing Somalia as Somalia has killed Darfur.

So in my view, how do you reflect on that and how do you see the situation in Somalia compared to Darfur?  Why do we need to intervene in Darfur when we already know Somalia has the largest humanitarian crisis in the world?  I thank you.

MCFADDEN:  Thank you for the question.

CRAIG:  Well, there's a lot of truth in what you say, I think.  It was the mismanagement of the Somalian intervention I think that made the Clinton administration so overly cautious in Rwanda.  So I think that your cause and effect has clearly got a lot going for it.

I'm not sure I understand exactly why there's not more attention being paid to Somalia.  I think there are many people in this audience that are equipped to answer that question than I am, and perhaps we can get some of them to participate.  You know, there's half a dozen people I know out here that can answer every single question I've been asked better than I have today, so on this I will defer to Nick.  But your question I think is very well taken.

MCFADDEN:  Nick, would you like to offer --

ROSTOW:  I don't know the answer to the question and I, once again, find myself in complete agreement with what Greg has said.  (Laughter.)  I think --

MCFADDEN:  It's just like the debates, isn't it, you know?

CRAIG:  No, no, that was not like the debates.  (Laughter.)

MCFADDEN:  Actually, on that point, if there's someone in the audience who would like to offer insight?  Is there someone who would like to comment on this?

CRAIG:  Maybe you'd like to call Joe the plumber.  He might have a view -- (laughter).

MCFADDEN:  Who is not a plumber, by the way.  Did you hear that?

ROSTOW:  My plumber is very intelligent man.  I think I'd learn a lot from him.

QUESTIONER:  This has nothing to do with Somalia.  My name is Enid Adler.  I'm a Philadelphia lawyer who is on the Coalition for the International Criminal Court.  And first of all, Cynthia, thank you for the wonderful direct questions that you asked, the questions that should have been asked in the debates and were not, and raises a lot of other questions.  But my question -- there has just been a new agreement between the United States and Iraq, if I understand it correctly, where if our troops commit certain kinds of crimes, that they can be arrested and tried in Iraq.  How is that different from the International Criminal Court having the same right, one?  And, two, what about the principle of complementarity.  Do you really think that the court would override our trying somebody in our court?  And all the other countries and our allies have agreed to this and taken that chance, so where are we?

CRAIG:  I think you're talking about the SOFA that's being negotiated.  My understanding is that it's not quite completed yet, that it's being circulated in Iraq.  We're getting briefings inside the sort of the beltway among members of the House and Senate but that the final agreement has not been determined.  If it's like other SOFAs, Status of Forces Agreement, there will be immunity for American forces and they will not be prosecuted by Iraqi courts if they're engaged in unlawful or criminal activity.

Now, one of the world experts on the questions of SOFAs is Nick Rostow, who is counsel to the National Security Council and probably is very familiar with all the details of this sort of stuff.

ROSTOW:  Well, I used to be but I would never claim to be a world authority -- (chuckles) -- on the subject, but it is, as Craig just stated, that in Status of Forces Agreements around the world there are crimes for which American soldiers and personnel might be subject to domestic courts and there are crimes or allegations for which they would not be.

I'd like to take up this issue of complementarity because it is a very interesting one.  It is the notion that if, in the judgment of the International Criminal Court, a state has investigated appropriately, prosecuted appropriately, sentenced appropriately, an alleged war criminal genocidea (ph) or other criminal within the jurisdiction of the court, then the court will defer.

Now, there's a great deal of cynicism about this complementarity principle among our allies.  The French, for example, terrified that they would be prosecuted for their role in Rwanda, originally signed up to the ICC with a declaration that it wouldn't apply to the crime of genocide for seven years, so the whole jurisdiction of the court with respect to genocide allegations by Frenchman would not --

(Cross talk.)

MCFADDEN:  There's been a seven-year statute of limitations on genocide.



ROSTOW:  But they figured that, you know, the dust would have settled by then.  The British --

MCFADDEN:  Ah, who would have thought --

ROSTOW:  -- instituted an entirely separate and special military justice system to deal with any allegation of criminal activity by their armed forces in the hope that that would satisfy the complementarity principle, but there's a great deal of anxiety among British civil servants and soldiers about exactly how that's going to work.

And so my point is this:  I have been in endless debates on this subject with my European friends and they always say, trust us; we're not going to do this, and that's not a legal argument.  And that's my only point on this.

MCFADDEN:  Let's go to the back of the room.  Steve?  I can't see.  You, yes.  Sorry, go ahead.

QUESTIONER:  My name is Richard Dicker and I'm with Human Rights Watch's International Justice program, and I had a question for both speakers to probe you a little  bit on different comments you made, and first to say that on this issue of the peace and justice interface that you spoke to a moment ago, certainly there are situations where a tension can arise between these two important objectives, but it seems to me -- and I would agree with Mort Halperin's comment -- that really the challenge is to manage such tensions smartly without sacrificing either objective, and certainly breaking with what I think is outdated wisdom that justice must take a backseat to peace.  I think international law has evolved beyond that.

But the question first for you, Nick, is the example that you gave was of Germany after the Second World War, an occupied country, a situation in which it would have been appropriate to go forward with prosecutions.  Most situations today are internal and not international conflicts.  And I just want to push you a little bit or ask you to take your thinking a little further in terms of what other situations did you envision such prosecutions could occur in and should occur in?  And for you, Greg, your comment about there could be complications with deployment.  And my sense is really the issue isn't deployment and it's certainly not peace talks, because there are no peace talks.  Really what is motivating those at the Security Council considering this is the threat of retaliatory violence by the government of Sudan against peacekeepers, against innocent civilians, and against humanitarian assistance workers.

And I guess my question for you is, let's assume that's the fact, and in an Obama administration, how would you deal with this challenge of essentially bartering impunity in a form of blackmail or extortion?  Thank you.

MCFADDEN:  Who wants to go first?  And we're almost out of time.

ROSTOW:  Well, look, I think one should always be in favor of smart international behavior and the smart accommodation of tensions, recognition that there are tensions and there can be tensions between the prosecution and political activity.  We invaded Panama because of an indictment.  We were in a straightjacket because of an indictment.  And there's a lesson to be drawn from there:  When an indictment takes place, whether it's politically motivated or it's not politically motivated, it rigidifies a situation and you lose options.  Your flexibility is cut back.  And as long as your eyes are wide open, that's fine, but don't be surprised by that being a consequence.

And I think that -- I happen not to be a great fan of using indictments politically.  I don't like the notion that one can say so and so, who's alleged to have committed a crime, should be prosecuted, tried, convicted and sentenced with certainty without, you know, at least giving some nod to the notion that one is innocent until proven guilty.  But I think the point is to be as sophisticated about this as possible.

MCFADDEN:  So the question of leverage in a way, I suppose, is the second question.

CRAIG:  Well, let me begin by pointing out that Mort's first sentence was, it should be on a case-by-case basis, and that each case is going to be somewhat different from the next case.  So I think we're all in agreement, Richard, on that point.

Unfortunately we've had too much experience with this tension because it's occurred not only in situations where the ongoing genocide or the ongoing war crimes are still being committed, but also after there has been a change.  We've see Argentina, we've seen Chile, we've seen Guatemala, we've seen Salvador, we've seen South Africa -- there are too many examples of situations where there is a tension between the peace and reconciliation part of it and the prosecution and the impunity part of it.  This, I think, is a new situation, and my own reaction -- this is Greg talking -- that if a head of state starts threatening to kill peacekeepers in order to prevent himself from being indicted, you do not back down from that.

That kind of thuggish behavior has got to go to the Security Council, and you have a united Security Council.  You work hard with the Chinese and the Russians on that, and you work hard to get a united international community.  You cannot let that kind of threat or that kind of thuggery prevail over justice.  And if it requires pulling people out in order to, you know, reorganize and restructure another intervention that's going to be much more difficult and perhaps more violent, that's what you do.

MCFADDEN:  Well, we're out of time for questions, I'm sorry to say.  I want to thank both of our panelists.  It's been very illuminating.  Thank you, guys.











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