[Senate Hearing 106-769]
[From the U.S. Government Publishing Office]
S. Hrg. 106-769
THE INTERNATIONAL CRIMINAL COURT:
PROTECTING AMERICAN SERVICEMEN AND
OFFICIALS FROM THE THREAT OF
INTERNATIONAL PROSECUTION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
JUNE 14, 2000
__________
Printed for the use of the Committee on Foreign Relations
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
__________
U.S. GOVERNMENT PRINTING OFFICE
67-980 WASHINGTON : 2000
COMMITTEE ON FOREIGN RELATIONS
JESSE HELMS, North Carolina, Chairman
RICHARD G. LUGAR, Indiana JOSEPH R. BIDEN, Jr., Delaware
CHUCK HAGEL, Nebraska PAUL S. SARBANES, Maryland
GORDON H. SMITH, Oregon CHRISTOPHER J. DODD, Connecticut
ROD GRAMS, Minnesota JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas RUSSELL D. FEINGOLD, Wisconsin
CRAIG THOMAS, Wyoming PAUL D. WELLSTONE, Minnesota
JOHN ASHCROFT, Missouri BARBARA BOXER, California
BILL FRIST, Tennessee ROBERT G. TORRICELLI, New Jersey
LINCOLN D. CHAFEE, Rhode Island
Stephen E. Biegun, Staff Director
Edwin K. Hall, Minority Staff Director
(ii)
C O N T E N T S
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Page
Lawyers Committee for Human Rights, Elisa Massimino, director,
Washington, DC, prepared statement submitted for the record.... 38
Rabkin, Dr. Jeremy, professor, Department of Government, Cornell
University, Ithaca, NY......................................... 8
Prepared statement........................................... 16
Responses to additional questions for the record from Senator
Jesse Helms................................................ 13
Wedgwood, Ruth, professor of law, Yale University, New Haven, CT;
and senior fellow and director, Project on International
Organizations and Law, Council on Foreign Relations............ 21
Prepared statement........................................... 24
Weinberger, Hon. Caspar W., former Secretary of Defense; and
chief executive officer, Forbes, Inc., Washington, DC.......... 4
Responses to additional questions for the record from Senator
Jesse Helms................................................ 7
(iii)
THE INTERNATIONAL CRIMINAL COURT: PROTECTING AMERICAN SERVICEMEN AND
OFFICIALS FROM THE THREAT OF INTERNATIONAL PROSECUTION
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WEDNESDAY, JUNE 14, 2000
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 3:35 p.m., in
room SD-419, Dirksen Senate Office Building, the Hon. Jesse
Helms (chairman of the committee) presiding.
Present: Senators Helms and Grams.
The Chairman. The meeting will come to order. We have a
most interesting and impressive agenda here this afternoon.
Cap Weinberger--I am going to say the Honorable Caspar W.
Weinberger--whom I have known ever since I have been in the
Senate, former Secretary of Defense and chief executive officer
of Forbes, Inc., in Washington; and Dr. Jeremy Rabkin,
professor in the Department of Government, Cornell University
in Ithaca, New York; and last, but certainly not least, is Ruth
Wedgwood, professor of law, Yale University in New Haven,
Connecticut and senior fellow and director of the Project of
International Organizations and Law at the Council on Foreign
Relations.
Now then, with the establishment of a prominent
International Criminal Court [ICC] drawing nearer and nearer,
the fact that American servicemen and officials may one day be
seized, extradited and prosecuted for war crimes is growing.
And indeed, that day may already have arrived.
In a little-noticed article, the New York Times recently
reported that following General Pinochet's detention--and I am
quoting the Times--``The FBI has warned several former U.S.
officials not to travel to some countries, including some in
Europe, where there is a risk of extradition to other nations
interested in prosecuting them,'' end of quote from the Times
article.
Moreover, this year for the first time we have seen an
international criminal tribunal investigate allegations that
NATO committed war crimes during the Kosovo campaign. And a
month ago, in May, NATO Secretary General Lord Robertson
submitted to a degrading, written interrogation by a woman
named Carla Del Ponte, the chief prosecutor of the Yugoslav War
Crimes Tribunal.
And after examining Lord Robertson's answers, Ms. Del Ponte
decided to wrap up her 11-month investigation of NATO without
bringing any charges against President Clinton, NATO
commanders, or allied servicemen. But the damage was already
done, you see. Simply by cooperating with the investigation,
Lord Robertson mistakenly acknowledged that the Yugoslav
tribunal had jurisdiction over NATO and its member states, and
thereby had authority to judge NATO actions.
Now this extremely dangerous precedent will come back to
haunt the United States. NATO commanders and officials may have
avoided the indictment this time, but mark my words, the day is
not far off when American servicemen and officials will face
indictment by an International Criminal Court. And this
committee is convened today because of that, because I and
other Senators felt the need to assess the threat to United
States servicemen and officials posed by this dangerous
evolution of so-called international law and to consider a
legislative remedy.
And this morning, or a little later than that, this
afternoon, I have introduced, with Majority Leader Trent Lott
and Senators Warner, Grams--Mr. Grams is here--Hatch, Shelby
and others, the American Service Members Protection Act of
2000.
The American Service Members Protection Act will bar any
U.S. cooperation with the ICC so long as the United States has
not signed and ratified the Rome Treaty. It requires that
United States personnel be immunized from the ICC's
jurisdiction before the United States can participate in any
United Nations peacekeeping operation. And it prevents the
transfer of classified national security information to the
court.
And it bans U.S. military assistance to any country that
has ratified the Rome Treaty, with a waiver for U.S. allies who
have agreements that protect Americans from extradition.
Furthermore, it authorizes the President to use all means
necessary and appropriate to bring home any United States or
allied personnel detained against their will by or on behalf of
the court.
Now this legislation does not, does not, prevent the United
States from cooperating with current or future ad hoc tribunals
created through the Security Council. And it will not prevent
the prosecution of future Pol Pots and Saddam Husseins. What it
will do is make certain that the United States does not
acknowledge the legitimacy of the ICC's bogus claim of
jurisdiction over American citizens.
Now then, why is such legislation necessary? Because the
International Criminal Court insists that American citizens
will be under its jurisdiction, notwithstanding the fact that
the United States has neither signed nor ratified the Rome
Treaty. And if I have anything to do with it, the United States
never will.
Yet despite this, Secretary Albright has declared that the
United States intends to pursue a ``good neighbor'' policy with
the ICC. Now then, I want to know how can we be a good neighbor
to a court that insists on its so-called right to prosecute
American servicemen and officials, even though the United
States has refused to join the court. If other nations are
going to insist on placing Americans under the ICC's
jurisdiction against their will, then Congress has a right and
responsibility to place a cost on their obstinacy, and to
ensure that our men and women in uniform are protected.
And that is why we are so pleased today to welcome the
Honorable Caspar Weinberger, who will share his perspective as
a former U.S. Secretary of Defense on why the prospect of
international prosecutions of American servicemen and officials
would have a chilling effect on U.S. national security
decisions.
We also, as I said earlier, welcome Professor Rabkin and
Professor Wedgwood.
Senator Grams, would you have some comments?
Senator Grams. Thank you very much, Mr. Chairman. I do just
have a brief statement.
The Chairman. Please.
Senator Grams. But I want to thank you for holding this
hearing. And I am also very pleased to be an original cosponsor
of the legislation to protect our military personnel from the
International Criminal Court prosecution and to restrict our
Government from cooperating with this court until the Senate
ratification occurs.
Now last year, two of my ICC initiatives were signed into
law; one prohibiting U.S. funds from going to the ICC, and the
other prohibiting extradition of U.S. citizens to the court.
The American Service Members Protection Act of 2000 will build
upon those efforts.
It is needed, because I believe the greatest force for
peace on this Earth is not an international court; it is the
United States military. Ironically, the very nations that have
created a court which inhibits our ability to project force
have repeatedly called on the United States to be the global
enforcer. They should recognize that a treaty which hinders our
military is not only bad for America, but it is also bad for
the international community.
Now supporters of this treaty are banking on the fact that
the United States will allow the ICC to flourish and to gain
legitimacy over time. There are calls for a policy of benign
neglect. And we cannot let that happen.
Even if it is weak at its inception, the ICC's scope and
power can, and it will, grow. The court will be an
international institution without checks, without balances,
accountable to no state or institution for its sanctions or its
actions. There will be no way to appeal its decisions, except
through the court itself. And the rules of the court will be
developed over time by the court itself through custom and
precedent.
So we must affirm that the United States will fight any
institution which claims to have power to override the U.S.
legal system and to pass judgment on our foreign policy
actions. We must refuse to let our soldiers and government
officials be exposed to trial for promoting the national
security interests of the United States.
Should this court come into existence, Mr. Chairman, we
should have a firm policy of total non-cooperation, no funding,
no acceptance of its jurisdiction, no acknowledgment of its
rulings, and absolutely no referral of cases by the Security
Council.
Thank you very much, Mr. Chairman. I have to leave for
another meeting, but I will read with interest the testimony of
our witnesses today, and also their responses to your
questions. But I thank you very much. This is an important
hearing. Thank you.
The Chairman. Rod, thank you very much. And we will see you
later.
Let me mention the cosponsors of my bill. I mentioned,
Senator Lott and myself. But in addition to those two, John
Warner, Chairman of the Senate Armed Services Committee is a
cosponsor; Rod Grams, from whom you just heard; Orrin Hatch,
who is the Chairman of the Senate Judiciary Committee; and
Richard Shelby, who is Chairman of the Intelligence Committee
of the Senate; and over in the House Tom DeLay, Floyd Spence,
Dick Armey, Porter Goss, Ben Gilman, Henry Hyde, J.C. Watts,
Chris Smith and others are cosponsoring it on that side.
Mr. Secretary, we are glad to see you again. We will
proceed with you, if you will.
STATEMENT OF HON. CASPAR W. WEINBERGER, FORMER SECRETARY OF
DEFENSE; CHIEF EXECUTIVE OFFICER, FORBES, INC., WASHINGTON, DC
Secretary Weinberger. Thank you very much, Mr. Chairman. It
is a great honor to be asked to testify before this committee.
And I am delighted to be able to do so, particularly on a
matter as important as this.
And I particularly would like to commend you and the
committee for holding the hearings and also for preparing the
bill, which has been generally described, and which I think is
an essential act to prevent any problems that could come up
with the fact that this court will undoubtedly attempt to
assert its jurisdiction over American citizens and American
servicemen, even though we would not be a party to the treaty.
It seems a little hard for a lot of people to grasp, but that
can happen.
But literally all we have to do is refer to the Pinochet
case and see what can happen even without the treaty and
without any of its provisions being in effect, because in
effect, the British House of Lords, to my considerable surprise
and astonishment, ruled that he could be extradited to Spain,
even though there was no connection between Britain and Spain
or between Spain and Pinochet, except as they were willing to
assert it.
So I think it is essential to have this kind of an act that
you are proposing along with a very distinguished group of
cosponsors, as long as this treaty is about to come into force.
I gather that will happen when 60 nations have ratified it.
Some 97 have signed it as of February, I guess.
The ratifications have come in slowly. But yesterday or the
day before, France signed it and ratified. And as a member of
the NATO Security Council, I find that not only very
disquieting but an indication of the way in which the trend
will go.
And so I think it is fair to say that the treaty will
probably be formally declared in effect probably within the
year, year and a half. And it certainly is well to be as
prepared as we can.
I would suspect that the passage of the bill you are
proposing, Mr. Chairman, would have a rather chilling effect on
some countries as to whether they would really want to exchange
membership and support for the kind of cooperation and
friendship and military support and all the rest that the
United States have been offering, but will be unable to offer,
or cooperation in the peacekeeping forces, which we will be
unable to proceed with if this treaty should be formally
ratified by the 60 nations.
Assuming that it is, I think it is well to look at
precisely what it would do, particularly to our servicemen or
to any officials who might be brought before it by the court's
own direction. The court will be pretty much freestanding.
There are indications that the Security Council could overrule
or possibly change some of its actions, but that is pretty
fuzzy. And the Security Council itself is known to have made
some decisions that are, we feel, certainly in many cases, have
not been in the best interest of the United States.
The whole concept really tests whether the idea of
sovereignty exists any longer. And it is a very major step
along the road toward wiping out individual national
sovereignty. And I do not think very many of our people realize
that that essentially is what it is and that we have already
given up a fair amount of sovereignty. And the question really
is, do we want to do it anymore in this very critically
important kind of situation.
When you realize that this treaty would set up a court that
would not in any sense be able to, nor required to, offer
defendants the right of trial by jury, protection against self-
incrimination, the right to confront and cross-examine
prosecution witnesses, none of those rights that we take for
granted and that have been part of the fabric of our country
since its foundation, and before that part of the fabric of the
whole English common law, then we should ask do we really want
to allow American citizens to be brought before a court that
would operate in this kind of a--under a different set of rules
and without the principles that we have always felt were
essential.
I would think that there is not sufficient understanding
yet among the people of the country that this is essentially
what could happen.
We have been told that we would not be able to bring
international criminals to trial or to court unless we sign
this treaty.
I would suggest, Mr. Chairman, we have a very good example
of an international criminal who has been brought to justice.
Mr. Noriega is in jail. He was taken as a result of a military
action. He will be tried according to American rules. He will
have his own counsel. He will have all these rights that I
mentioned. But he will be tried. And that can happen.
I would also suggest that the United Nations' record is not
all that good in apprehending or dealing with people whom they
designate as international criminals. There have been a couple
of Yugoslavian generals who were identified as people who were
responsible for a great many of the atrocities that were
committed in Bosnia and in Kosovo.
It is reported that they cannot be found. Yet they attend
and speak to public meetings. And they appear in public, and
they do not seem to have much fear of being apprehended by the
United Nations.
So I think we might want to contrast these various ways of
dealing with international criminals. And bear in mind that a
court of this kind will be freestanding in a sense, will have
its own rules, will make its own definitions, they are the ones
who will define and interpret the rather vague language of the
treaty of Rome that created it, defining what is an atrocity,
what is terrorism, what is abuse of human rights and so on. And
until they do, no one really knows precisely who could be a
defendant.
I think the administration is to be commended. You may be
surprised to hear me say that, but I think they are to be
commended for not signing this treaty thus far. I think there
is some evidence, however, of what I would call backsliding,
because our negotiators have been meeting all this week, trying
to get a few concessions and changes in the treaty that might
make it slightly more palatable, such things as, first of all,
trying to bring about a situation in which we could try some of
these people in our own courts. It is said that we could do
that now. But not under American jurisprudence rules, but under
the rules that would be established by this court.
It was also said that we could veto any individual,
American citizen, brought before the court and deny that by a
vote of the Security Council. But we do not always prevail in
the Security Council. And in order to pacify some people who
objected to our having this exception, our negotiator has
agreed that that clause could be removed. So that is no longer
a provision that would mitigate the effects of the treaty.
These matters are all settled at the moment by what are
called status of forces agreements. Wherever we have American
troops stationed in a foreign country, we at the same time
establish a bilateral status of forces agreement that covers
such matters as jurisdiction and whether the servicemen who
might commit crimes can be tried in American courts or in the
domestic courts.
We have had those rules that are worked out bilaterally, to
which we consent and to which we are part of the negotiations
and which we agree to.
All of those status of forces agreements would essentially
be overridden, if this treaty were adopted and we were a part
of it. And they would be even subject to challenge, even though
we are not part of the treaty. And that again is the difference
between bilateral resolution of complex matters and leaving it
up to a group that would be in a sense representative of some
180, 190 nations, some of whom occasionally vote with us, but
not very often.
So I think all of these are factors that we have to keep in
mind when we think about whether or not we would want to be
part of it. We have decided thus far that we are not going to
be part of it. And I am glad of that. I hope there is not going
to be any backsliding.
I feel somewhat confident that there would be, because one
of the perhaps unintended consequences of this treaty would be
that Iran, for example, might bring a charge against President
Clinton.
He would then be tried by this court and could be punished
by that court for his actions in trying to secure international
inspections of Iranian weaponsites. The fact that that might
happen might very well prevent any further backsliding. And I
hope that it will prevent that.
But that is an example, perhaps an extreme one, of the
kinds of things that could happen, if we do not take the action
to immunize American forces and American people from the
actions of the court to which we thus far have decided we do
not want to belong to.
These would all be reasons why I think it is essential that
we consider very carefully whether or not an action of this
kind is not necessary. My own feeling is that it is necessary.
Our status in the world requires that we participate in a
number of activities in different parts of the world.
We are a super power. We are a country whose great good
fortune and our strength and our resources requires us to bear
certain responsibilities. We cannot bear those responsibilities
if we are going to have the people who are carrying out these
very difficult and dangerous duties for us are subject to
prosecution by anyone who does not particularly care for
American foreign policy or anyone who does not particularly
care for America. And there are quite a few people like that in
the world, as you know.
So for all those reasons and for many, many more, I would
strongly urge the adoption of this bill that you have
introduced and secured the co-sponsorship of many distinguished
Senators, and that it is going to be introduced in the House. I
think it is essential that those be adopted and that they be
adopted early.
It may very well have, as I said, a rather chilling effect
on some countries that are considering whether they want to
formally ratify this treaty and bring this kind of court into
existence. If it does not, so be it. It does not seem to me to
be a particularly difficult burden to bear, if America stands
outside of this kind of an arrangement and indeed prevents our
people from being penalized by it.
I think that that may be, with the way in which the world
is going and with the number of countries that are there, with
the foreign policies that they have that are so vastly
different than ours, it may be that that will be a regular
occurrence regularly from now on. I hope not. I wish we could
be able to secure the kind of united support that we used to
have and that I think we need.
But in the absence of getting it, the very least we could
do is protect the service people that we call upon to carry out
these difficult and dangerous duties and our other officials,
all of whom would be subject to the action of a court to which
we not only do not belong but which we have specifically
refused to join.
Those are the reasons why I think it is very important that
your bill pass, sir.
The Chairman. Thank you, sir.
[Responses of Mr. Weinberger to additional questions for
the record follow:]
Responses of Hon. Caspar W. Weinberger to Additional Questions for the
Record Submitted by Senator Jesse Helms
TERRORISM
Question 1. The Report of the National Commission on Terrorism was
released earlier this month, and placed emphasis on the ``imperative to
find terrorists and prevent their attacks [using] all the legal
authorities and instruments available.''
In your view, would an operating ICC be an ally, a bystander
or an obstacle to the U.S. struggle against terrorism?
Will an active, aggressive ICC prosecutorial authority
``chill'' international activity by U.S. intelligence agencies
that could, quite conceivably, protect American citizens from
enormous peril?
If non-state actors have no international juridical
personality, how will the ICC respond to terrorism by irregular
armed groups, some of which are working to obtain weapons of
mass destruction?
Answer. I am afraid the International Criminal Court (ICC) would be
an obstacle to our attempts to deal with terrorism at home and abroad.
With so many members from various Third World countries, some of them
hosts to terrorism, I would suspect that the ICC would be used as a
method of blocking any attempts by us that might be reasonably
effective in dealing with terrorism.
UNIFORM CODE OF MILITARY JUSTICE
Question 2. Could the Uniform Code of Military Justice and U.S.
statutes and guidelines on combat engagement coexist with the ICC's
claim to international war crimes prosecutorial authority?
What will this do to our command structure and traditions,
even if we are not a Rome Statute party?
Answer. I do not believe the UCMJ could coexist with the ICC's very
broad prosecutorial authority. In any event, many situations would
probably involve lengthy and non-productive lawyers' arguments about
whether our law or the ICC would prevail, which would in itself impair
our efforts.
AMERICAN SERVICEMEN'S PROTECTION ACT
Question 3. Given the transnational prosecutorial revolution we see
developing:
Should the United States insist that the U.N. Security
Council explicitly immunize our troops from future prosecution
before deploying them on peacekeeping missions?
Should the United States insist on explicit agreement from
governments of nations on whose soil we deploy troops that they
will not hand over those troops to the International Criminal
Court?
I'd like you to comment on the ``American Servicemen's Protection
Act of 2000'' which I introduced with Senators Warner, Lott, and
others, today.
Do you think it provides appropriate protections for the
situation in which the International Criminal Court exists but
the United States has not ratified it? What is your opinion of
the legislation?
Answer. In case there are further suggestions that we join the ICC,
I think it increasingly essential the American Servicemen's Protection
Act be adopted. I think that legislation is extremely important, but I
believe it would be even more important for us not by ever adopting the
ICC, to put ourselves in a position where we would have to rely on
promises from so many countries, and in addition rely on the assumption
that all of those promises would be kept. The legislation is certainly
our very best safeguard next to not joining the ICC at all, but it
might give some the impression that adoption of this Act would cause us
to lessen our strong objection to signing the ICC agreement later.
IMPACT ON ISRAEL
Question 4. What kinds of threats do you anticipate Israel will
face from the International Criminal Court?
Do you imagine that Israeli policies in the so-called
``occupied territories'' will be the subject of proceedings
initiated by Arab and other Third World states?
Answer. Again in view of the large number of nations involved and
the known hostility of at least some toward Israel, it is likely that
these nations would try to make every use of the ICC as part of their
continuing opposition to Israeli policies.
The Chairman. Professor Rabkin.
STATEMENT OF DR. JEREMY RABKIN, PROFESSOR, DEPARTMENT OF
GOVERNMENT, CORNELL UNIVERSITY, ITHACA, NY
Dr. Rabkin. Thank you. Well, I also think the bill is a
very good idea. And I think so for the same reasons that you
indicated at the beginning, Senator Helms. It is rather
important to try to stop this thing.
And as Senator Grams said, if it gets started, it will gain
momentum. And it is better to try to nip it in the bud, or at
least to make very clear to the world that we do not accept its
legitimacy.
I want to start by saying that I think the way this has
been described by the Clinton administration seems to me quite
wrong. They keep saying this is a very good idea, it is very
worthy, it just has a few technical glitches. And I think that
is totally the wrong way of looking at this. It is not a very
worthy idea. It is actually a quite bizarre idea. Nothing like
this has ever been attempted. Nothing like this has ever been
proposed in the whole history of the world.
And you have to wonder why is that, since all kinds of
crackpot schemes have been proposed previously. But nobody
previously said: ``Let us have a criminal court for the whole
world.'' I give you just one example of just how extreme this
is.
If you look at the European Union, they have now a common
flag, they have common passports, they have a common
parliament, they have all these common institutions. One
institution which they do not have is a common criminal court,
because the countries of Europe, which are willing to share a
lot of power, are not willing to share that.
So we are supposed to believe that something which the
Europeans are not willing to do in Europe, the whole world is
willing to do on a global basis. That's very hard to take
seriously, I think.
And it is a bad idea. It is not just bizarre. I mean, the
basic premise here is that the core responsibility of a
sovereign state, which is enforcing criminal justice in its
territory, that this core responsibility should be delegated to
some international authority to take care of for you. But what
this implies is that somehow outsiders will be better able to
take care of your territory than you are in this most
fundamental thing.
Now it is true the ICC does not cover all criminal justice.
It just covers the most sensitive criminal cases that any
country will have to deal with. We all think that perpetrators
of terrible crimes should be punished. But the fact is there
are circumstances in which countries, including our own, have
decided, well, maybe we cannot, because there are other
considerations than simply doing justice.
To give one famous example, which we do not talk about very
much anymore, but maybe we ought to remember it, after our own
Civil War, there was a general amnesty for all the rebels. And
that included people who had committed atrocities. There were
people in the Confederate Army who went around shooting black
troops, because they said, ``we do not recognize these people
as troops.'' And they just executed them in cold blood. These
were terrible crimes.
We threatened during the war that perpetrators of such
atrocities would be punished with execution. But afterwards we
just said, ``Let us wipe the slate clean and move on.''
I do not know whether that was the right decision or not.
But surely, that is a decision which a country should be able
to make for itself and not have made for it by some
international authority. Yet that is the core concept of this
tribunal, that you have an independent prosecutor, a global Ken
Starr, and if you do not punish the people who should be
punished, the global Ken Starr will step in and do it for you.
What that is saying is that the decision about whether to
prosecute should be made by someone who is not responsible for
governing the territory. Advocates for the ICC tell us there is
a tradition of this, but the supposed precedents are not at all
the same thing, if you go back to Nuremberg or the Tokyo war
crimes tribunals.
In those cases, we did not just step in to help other
countries with trials of their war criminals. We were in
control of those territories. We were, as a matter of fact, and
we said so, exercising the sovereignty of Germany at the time.
There was no other German government except the authority of
the allied occupying powers. There was no other Japanese
government, except General MacArthur's.
And we took responsibility for who to prosecute and who
not. Sometimes we were more lenient maybe than we should have
been, but the United States and its allies were responsible for
governing the territory and worrying about what would happen
there afterwards.
The ICC advocates are now saying ``No, let this
international bureaucrat take care of it for you.'' I think it
is a very bizarre idea. And the point that I want to make is,
it is so bizarre that you cannot take it seriously, that this
tribunal by itself will enforce international norms of justice.
It cannot do that. It does not have an army. It does not have a
police force. It does not even have a real subpoena power.
Basically, all it can do is, if people are willing to
cooperate, then it can have a trial. There are not likely to be
very many of them. The ones which do actually result will be
ones where interested powers wanted it to happen, not
necessarily because it is their citizen, but more likely
because it is someone else's citizen in the dock.
This is something which is a recipe for show trials. I
think it is fair to say it has no other purpose really than to
set up a platform for show trials. Is that really something we
want to let loose in the world?
The second point I want to make is, we should not just
focus on the ICC. We should see this in a larger context.
Secretary Weinberger mentioned the Pinochet case, and he was
right to mention that.
It has the following relevance: Two months after the Rome
conference, Britain decided on its own that it was going to
arrest Pinochet. He had no warning and he had actually been
there visiting many times before without incident. He came on a
diplomatic passport, with no reason at all to think he would be
in trouble. And suddenly they arrested him and said: ``We are
going to extradite you to Spain where they want to put you on
trial. They want to put you on trial for genocide.''
It took the British courts a year-and-a-half to sort this
out. And they said, ``Well, no, it is not exactly genocide that
you did, but we think that you could be tried under the torture
convention.'' The torture convention defines torture as ``any
act by which severe pain and suffering, whether physical or
mental, is intentionally inflicted.''
That is such an elastic definition that I think there
cannot be a single government in the world which is not in some
cases responsible for something which falls under that
definition of torture.
The British on their own said Pinochet could be tried for
what he did to Chileans in Chilean territory while he was the
head of state of Chile. They on their own say: ``We think that
international law has now reached a point where any country
that wants to can go out there and do justice on third parties
because it just wants to.'' Now that is loose in the world.
The relevance to the ICC is the following: People are
saying, ``Well, if that bothers you, 180 countries going out
there seizing whoever they can get hold of and putting them on
trial and having their own show trial, the answer is the ICC,
because we will say do not have all these countries doing it on
their own, `Do not do it yourself, hand it over to the experts
in The Hague, the ICC.' ''
But if you look at the statute, the Rome Statute, it does
not prohibit these kind of do-it-yourself exercises in
international justice. So far from prohibiting them, it
actually encourages them, because what it says in the preamble
is, among this list of things that are supposed to get you in
the mood for the statute, it says at the beginning, ``it is the
duty of every state to exercise its criminal jurisdiction over
those responsible for international crimes.''
It does not say exercise your jurisdiction over your own
criminals. It says exercise your state jurisdiction over those,
all of those, ``responsible for international crimes.''
The people who put this together think the Pinochet case--I
mean they did it before the Pinochet case, but they are looking
ahead to that. They are saying, ``Yes, you should be able to
reach out into the world. And anyone you can grab, if you want
to do justice, do it good, do it.''
Now, what that means is, if the ICC gets up and going, even
though a lot of its jurisdiction will not apply to us, if we do
not ratify it, there can be these do-it-yourself efforts of
justice by third countries, who happen to get hold of some
American official and want to put him on trial. The ICC not
only does not prevent that, it encourages it, because if this
thing gets going at all, the ICC, you are going to have a
number of show trials. You are going to have interpretations.
You are going to have precedents. You are going to buildup a
case law.
And that will make it easier for--take your pick of which
country is most likely to do this. But countries that want to
have their own fun show trial at the expense of an American
will have a chance to do it and rely on this case law. So I
think this is a very combustible mix which we have now.
The last point I want to make briefly is this: People say,
``Well, do not worry that this will be turned against the
United States, because, you know, basically this is a European
proposal, and basically it will be restrained by reasonable
people who will be there in The Hague.'' I do not believe that
at all. And I think it would be foolish for us to rely on that.
And again, I commend you, Senator Helms, for saying: ``No, we
have to stop this.''
If you look at the text of the Rome Statute itself, it
makes no distinction between democracies and dictatorships. And
in that it is like all these human rights conventions. They all
say in effect, ``it doesn't matter if you happen to be a
democracy, because we have these international human rights
that we are going to impose on you, and we know better.''
We are not aiming for anything in the statute to rescue
people who are under despotic governments. We are just out to
do good, to rescue anyone and everyone, including people who
live under democracies, including people like the Chileans, who
have this issue about what to do with somebody who was a
dictator and then voluntarily gave up power. And they decided
to leave it at that, as most countries have when they have made
a transition.
Really, do you want to have this international prosecutor
decide for you? I think what is going to happen is, this
international court, because it has no police, because it has
no army, because it has no real power, is going to have to play
to the gallery. It is going to have to play to the crowd.
It is going to have to have non-governmental advocacy
groups mobilize on its behalf. That is what happens in
international programs. That is what happens in all these
environmental conferences. You have to get Green Peace and
Friends of the Earth and all these environmental groups to
agitate for you, because otherwise you do not have anything
there.
So these groups, I think, will be setting an agenda. That
is exactly what happened with Britain. How come they picked on
Pinochet? There are a lot of dictators in the world. There are
a lot of people who have much bloodier hands than he does.
Well, the answer is international advocacy groups were
agitating about Pinochet. But they are not only agitating about
Pinochet.
And concluding, I just want to call your attention to a few
other things they agitate about. One, of course, is a lot of
them agitate about Israel. At the conference, the Rome
conference itself, one of the disputes there was whether the
definition of war crimes should include doing injury to
property and houses. And the Israeli Ambassador said: ``You
cannot do this, because that is one of our tactics of
retaliation against terrorists. This is just aimed at us.''
And the Arabs said: ``Yes, it is aimed at you. And yes, we
are going to put you on trial for war crimes for blowing up
people's houses.'' And the Israeli Ambassador said: ``Please do
not do this.'' The delegates at the Rome conference did not
give him the time of day.
We hear all the time about the United States now being in
the small group of countries that have not signed the Rome
Statute. Every newspaper article I have seen in the last week
says China, we are in the company of China, we are in the
company of Iraq, we are in the company of, you know, bad
countries.
And they never mention Israel. How come we are in Israel's
company? Well, because Israel is a country that really has to
worry about international authority being used against it.
Israel is constantly condemned at the U.N. Come to think of it,
we used to be condemned a lot at the U.N.
And I think the people who agitate these things will want
to agitate a case against the United States. If you look at
Amnesty International, they said the United States was guilty
of war crimes in Kosovo. You mentioned that before.
It was Amnesty International that really cranked that up
and said that the Yugoslav tribunal had to look at the United
States. Amnesty International publishes more attacks, they
publish more studies, more accusations against the United
States than they do against any Communist country.
There are a lot of reasons for that, but I think the
ultimate reason is they are more interested in attacking the
United States, because their audience, the people who give them
money and read their publications, are more interested in
attacking the United States, because that is what they are
interested in.
I think there is every likelihood that if this thing gets
going, it will be used against the United States. And I think
the ultimate problem here is not that some individual
serviceman will be held captive. I mean, servicemen, by
definition, they have volunteered to risk their lives. I think
the ultimate threat here is that there will be a kind of
propaganda circus aimed at us. It will be disorienting and
demoralizing to us.
And I hope this will not happen, but I fear that it may
even be somewhat effective. And people think, ``Oh, gosh, we
are violating international law. We have to change our laws.''
And that is, of course, the purpose of this institution. It is
to set up some higher authority to tell us what to do in this
country.
And I think you are absolutely right, Mr. Chairman, in
saying: ``No, we do not want any part of it.'' And we do not
want anyone else to take part in it either. And if we can do
anything to discourage them, we are going to do it now. Do not
do this thing, that's what we should now say to the world.
Thank you.
The Chairman. Thank you, Dr. Rabkin.
[Responses of Dr. Rabkin to additional questions for the
record follow:]
Responses of Dr. Jeremy Rabkin to Additional Questions for the Record
Submitted by Senator Jesse Helms
Question 1. What kind of legitimacy does an International Criminal
Court have when numerous parties to it do not respect democracy and the
rule of law at home?
Answer. Proponents of the Rome Statute might argue that the
legitimacy of the ICC does not turn on the internal characteristics of
signatory states but on the performance of the court, itself. But the
Court will not have police of its own to make arrests. It will depend
for its effectiveness on the cooperation of signatory states. And
states with dictatorial governments, having no regard for the rule of
law at home, are not likely to be reliable partners in international
justice.
Question 2. If judges from Communist China and other dictatorships
serve as judges on that Court, does it have any legitimacy?
Answer. It may be that ``legitimacy'' is in the eye of the
beholder. Few people today question the ``legitimacy'' of the
International Tribunal at Nuremberg, which tried and sentenced the top
Nazi leaders after World War II--even though one quarter of its judges
were appointed by the murderous totalitarian government of Josef
Stalin. The Rome Statute requires that ICC judges be chosen in such a
way as to assure both ``equitable geographical representation'' and
``representation of the principal legal systems of the world.'' [Art.
36(8)(a)] So there is certainly a good chance that some of the judges
will be appointed from countries which have repressive dictatorships at
home. This is a disturbing prospect.
But I regard the backgrounds of the individual judges as a
secondary concern. The ICC would still be a very questionable venture
even if we could somehow be assured that all the judges would come from
democratic nations with fully independent court systems. As I mentioned
in my testimony, it is telling that even the bona fide democracies of
the European Union have thus far been unwilling to establish a common
criminal justice system, even on the European level. There are many
reasons to worry about the notion of an independent international
criminal justice system; the influence of undemocratic participants is
only one source of concern.
Question 3. Are ad hoc war crimes tribunals--such as those for the
former Yugoslavia and Rwanda--a better instrument for justice than a
standing global war crimes court?
Answer. The only ad hoc war crimes tribunals that have been
established since Nuremberg--that is, the one for the former Yugoslavia
and the one for Rwanda--were both established by resolutions of the
Security Council. The obvious advantage in this approach is that, if it
depends on the Security Council to approve the jurisdiction of the
tribunal, then the United States can block any proposed jurisdiction
that seems overly broad. (That is so, of course, because the U.S., as a
permanent member of the Security Council, can veto any Council
resolution by its own unilateral vote.)
But I still think the practice is worrisome. First, the U.N.
Charter does not anywhere grant the Security Council the authority to
impose such a tribunal. In Rwanda, the tribunal was established with
the consent and cooperation of the new Tutsi government and there was,
unquestionably, an urgent moral claim to punish the organizers of
genocide in the previous (Hutu) government. But I am troubled at the
precedent here, which implies that the Security Council has the
authority to establish a court, simply by its own resolution, even for
judging crimes that took place entirely within the borders of one
country and involved only the nationals of that one country. In the
former Yugoslavia, the Security Council imposed a tribunal over the
strong objections of the sovereign state of Serbia and in the face of
clear indications from Croatia that it would not extradite its own
criminals to the court. I find it particularly hard to accept that the
Security Council can impose a criminal court on a country that does not
want to accept it.
Beyond these concerns, there is a larger point for the United
States. It may be true that the United States retains the right to veto
Security Council resolutions. But it does not always exercise that
right. In the case of the Yugoslav tribunal, the Clinton administration
approved a resolution which, in fact, did give the tribunal
jurisdiction over American troops serving in the region. More than
that, the resolution establishing the tribunal made it the duty of the
prosecutor to investigate allegations received from whatever source. So
the prosecutor for that tribunal did feel obliged to make preliminary
inquiries about charges that NATO forces had committed war crimes
during the Kosovo air campaign. But the prosecution staff was doing its
job. The indignation might more properly have been directed against the
American government for agreeing to assign that job to the prosecutors.
Suppose things had gone a few stages beyond this or go beyond this in
the next round of charges: Suppose the prosecutors actually indict
American squad leader whose men kill civilians in Kosovo after a
confusing firefight with concealed snipers--a Balkan version of the
NYPD's Diallo case. Suppose prosecutors in the Hague demand that the
U.S. government turn over an American soldier for trial in the Hague. I
am not sure what the Clinton administration would do in such a case but
I do not want to find out. I think it is a mistake to support these
tribunals on the complacent assumption that the U.S. government can
simultaneously pretend to cooperate in full but always pull away and
refuse to turn over an American suspect if the court indicts an
American. It would be far better, I believe, to insist that every
country should try its own criminals and leave it at that.
Question 4. Does it worry you that the United States will face
politicized prosecutors and that U.S. officials and servicemen will
just as likely be targets of ICC proceedings as dictators?
Answer. I am certainly worried about the possibility that U.S.
officials and servicemen may be targets of ICC proceedings. But I think
the question is slightly misdirected. I don't think the main risk is
that the prosecutors will be ``politicized''--if by that you mean,
starting off with a deep-seated bias against the United States. Even if
the prosecutor has no particular bias, I think the circumstances of the
court will introduce a bias. The United States is a relatively open
society where it is easy to obtain information and where an
international prosecutor can count on receiving at least sizable
support from American-based advocacy groups. For this reason, it will
seem easier to make charges against Americans than against officials or
soldiers of a closed and repressive government. Besides, the United
States is the world's last remaining superpower, so the ICC will have
strong incentives to go after an American to prove that it is not
intimidated by American power.
But even if we are lucky and the prosecutor is not actually
influenced by such improper considerations, the question remains
whether the American people can feel full confidence in leaving
prosecutorial decisions in the hands of an unaccountable foreign
official. Independent Counsel Ken Starr was a former federal judge and
a man with an impeccable reputation before he took on the job of
Independent Counsel. By the time he left, almost everyone--including
Starr, himself--acknowledged that an independent prosecutor,
effectively accountable to no one, is an official who just won't be
trusted by the American people. If we can't trust our own independent
counsel, how can we possibly trust the U.N. counterpart in the Hague?
Question 5. Should the United States insist that the U.N. Security
Council explicitly immunize our troops from future prosecutions before
deploying them on peacekeeping missions?
Anwer. I don't think the Rome Statute authorizes the Security
Council to offer such immunization. The Security Council is authorized
to impose a 12 month ``deferral'' on any particular investigation or
prosecution (Art. 16). But if it does not re-authorize that deferral,
the prosecutor is free to proceed as he thinks best. Meanwhile, any one
of the permanent members of the Security Council (which include China
and Russia, as well as France) may block the re-authorization. So we
might get an initial resolution, that seemed to hold back the
prosecutors, and then find that it had run out and couldn't be restored
and American peace-keepers would, after all, find themselves vulnerable
to prosecution. If the ICC does come into existence, the Security
Council cannot provide the United States with reliable protection from
ICC prosecution.
Question 6. Should the United States insist on explicit agreement
from governments of nations whose soil we deploy troops that they will
not hand over those troops to the International Criminal Court?
Answer. Here again, I do not think this precaution can be relied
upon. A government may make this promise to us--and then renege on it.
Moreover, the host government may make this promise and the ICC itself
may hold that the promise was improper and therefore invalid under
international law. The Rome Statute does say that no signatory may make
any reservations to the obligations of the treaty (Art. 120). It really
does seem inconsistent with the treaty scheme to promise full
cooperation with the Court, when signing, and then make a separate
agreement that excludes this or that potential suspect from the Court's
reach. In the course of pursuing a particular case, the ICC may rule
that such an agreement is invalid and therefore no bar to ICC
prosecution. If the Court does issue such a ruling, the host country
for U.S. troops may feel that it has no choice--or at least, that it
has a very good excuse--to hand over accused American to the ICC,
despite its earlier promise not to do so.
Question 7. Do you think [the American Servicemen's Protection Act
of 2000] provides appropriate protections for the situation in which
the ICC exists but the United States has not ratified it? What is your
opinion of the legislation?
Answer. I am strongly in favor of this legislation. My hope is that
it may deter enough countries from ratifying the Rome Statute so the
ICC never comes into existence. Or, if the legislation is not that
successful, it may at least hold down the number of ratifying parties
so that the ICC has less prestige and authority than its proponents
seek for it. Even if the legislation does not succeed in these
respects, it can still, I think, make a valuable contribution because
it may deter participating countries from actually arresting or holding
American citizens for the ICC. When Secretary of State Albright says we
will be a ``good neighbor'' to the ICC, the implication might seem to
be that we won't feel too bad if other countries arrest Americans. This
legislation makes it unmistakably clear that we will regard such an
arrest as a hostile action--for which we feel entitled to retaliate
with force.
Question 8. What kinds of threats do you anticipate Israel will
face from the International Criminal Court?
Answer. I anticipate that Israeli officials will be among the first
suspects investigated by the ICC and among the first actually indicted.
Israel faces ongoing terrorist attacks which requires it to take
defensive measures and retaliatory actions that can easily be portrayed
as abusive. At the same time, Israel has implacable enemies who have
already shown themselves quite determined to use every international
forum they can to score propaganda points against it. But Israel is a
small country with few natural resources and therefore its ostensible
friends in Europe do not stir themselves to defend Israel. This was
proven at the Rome conference, itself, when the Israeli delegate
pleaded with the other delegations not to endorse Arab efforts to
include the destruction of buildings as a ``war crime''--when the Arabs
made clear they would use this clause to charge Israel with war crimes
for its retaliation policies in the disputed territories of the West
Bank. No European country bothered to come to Israel's defense. I
assume no European country would come to Israel's defense if an Israeli
were held for trial at the Hague. Finally, as Israel is a democracy
with a free press and a vigorous opposition, it will be much easier to
document alleged abuses by Israeli officials. So I fear the ICC will
have many incentives and many opportunities to target an Israeli
soldier or official to prove that ``international justice'' is a force
to be reckoned with--at least when dealing with small countries that
have few reliable friends.
Question 9. Do you imagine that Israeli policies in the so-called
``occupied territories'' will be the subject of proceedings initiated
by Arab and other Third World states?
Answer. I wouldn't simpy say that I can ``imagine'' this sort of
intervention. If the ICC does come into existence, I would predict that
it will quickly be turned against Israel. We have seen this pattern
again and again in other international forums. In the 1980s, Arab
states even used the World Heritage Convention to condemn Israel for
alleged neglect of historic sites in Jerusalem--under a treaty to which
Israel was not a signatory. UNESCO has a long history of Israel-
bashing. So does the ILO. So does the General Assembly. Last year, Arab
states tried to summon a general conference of signatories of the 1949
Geneva Conventions (the first ever, since the drafting conference in
1949) to condemn Israel for alleged ``war crimes.'' All of western
Europe was quite prepared to appease Arab dictatorships with new
condemnations of Israel in this forum and the conference was only put
off when Yasser Arafat requested that it be ``postponed.''
Perhaps the ICC will take a somewhat more responsible stance,
because its prosecutorial force does not have to answer to direct votes
by the states which ratify the Rome treaty. On the other hand, the
United States has been able to shield Israel from Arab enmity and
European cowardice in many other forums, but it will not have any
opportunity to exercise a veto on ICC proceedings. There are good
reasons why Israel has so far refused to sign this treaty.
Unfortunately, the ICC may claim that it has jurisdiction over
Israelis, even without Israel's adherence to the Rome treaty, if
``Palestine'' does adhere or some other Arab state do. We should take
it for granted that Arab states will do their best to turn the ICC,
like so many other international forums, against Israel and we should
take it for granted that few countries will come to Israel's defense. I
hope the United States remains an exception. I do not see that it will
be any better at defending Israel by ratifying the Rome Statute or
trying to cooperate with the ICC. In the end, my guess is that Israel's
defense will require armed force. That will be all the easier to
exercise if we do not subscribe to the Rome Statute.
[The prepared statement of Dr. Rabkin follows:]
Prepared Statement of Dr. Jeremy Rabkin
Thank you for inviting me to testify on the American Servicemen's
Protection Act.'' It is, I believe, a very important and timely
response to some very disturbing trends in international politics.
The official title of this measure calls attention to one specific
concern--the threat that individual American military personnel will be
placed on trial before the proposed International Court of Justice
(ICC). I believe this concern is well-warranted. But I also believe
this immediate concern needs to be seen in a wider context. What we
should worry about is not simply a physical threat to our servicemen
but a wider threat to our national sovereignty. In what follows, I will
try to sketch the most worrisome aspects of what is now emerging as a
broad trend in international law.
I will emphasize three main points: First, the ICC represents a
dramatic departure from traditional principles of national sovereignty.
Second, it comes at a time when principles of national sovereignty have
already been dangerously eroded and the ICC will only reinforce this
trend. Third, this trend will very likely serve to undermine the
authority of democratic governments--and the United States will be a
particularly tempting target.
I. INTERNATIONAL PROSECUTIONS THREATEN NATIONAL SOVEREIGNTY
International law has been developing for many centuries. Major
legal treatises have been published on the subject since the early 17th
century. Yet no one, until quite recently, has envisioned a reliable
system of criminal justice that would be truly international.
Why not? Because criminal law is inherently coercive--often quite
intensively so. Contract disputes typically involve business firms that
have some interest in demonstrating their trustworthiness. So many
contract disputes are now submitted, quite voluntarily, to private
arbitration. For centuries, merchants doing business across national
borders have agreed to trust national courts to settle international
contract disputes.
But criminals are, by definition, prepared to defy the law. So you
cannot enforce criminal law without force or the credible threat of
force. Who provides that force? The traditional answer was that every
sovereign state must be responsible for enforcing law and order within
its own territory. This ultimate authority to use force was understood
as one of the distinctive attributes of a sovereign state.
The historic priority of international law was to reduce occasions
for conflict among sovereign states. For the most part, it tried to do
this by getting them to respect the sovereign rights of other states
within their own territory. A state could enforce its criminal law on
foreign citizens entering its own territory but it could not try to
enforce its law on foreign citizens in some other territory. Here, for
example, is how a leading American treatise summarized the accepted
international law doctrine at the end of World War II: ``States are
agreed that within the national domain, the will of the territorial
sovereign is supreme. That will must, therefore, be exclusive. . . .''
Accordingly, ``a State cannot determine the lawfulness of occurrences
in places outside of . . . its control.'' (C.C.. Hyde, International
Law, Chiefly as Interpreted and Applied by the United States, 2d. ed.,
1945, pp. 640, 726)
It is true that in the decades since then, many countries--
including the United States--have claimed extra-territorial criminal
jurisdiction for crimes committed against their own citizens or against
their own fundamental security concerns. But such jurisdiction is hard
to enforce and has not often been exercised because, among other
things, it requires cooperation of other states or risks affronting
other states when done unilaterally.
It is a big leap beyond such limited self-protective measures to
the sort of jurisdiction envisaged for the ICC. Among other things, the
Rome Statute would give the ICC the authority to prosecute government
officials who violate the human rights of their own citizens. And the
ICC would have the authority to do this, for signatory states, in any
case where its independent prosecutor thinks justice has not been
done--even if the home state has conducted its own trial or issued its
own pardons.
Every country vests a pardon power in executive officials, which is
an acknowledgment that legal justice must sometimes be tempered by
other considerations. We ended our own Civil War with a general amnesty
for the rebels, even those responsible for murdering black soldiers in
cold blood. Every country that has made a transition to democracy in
the past decade--a considerable list of states from South Africa to
Latin America and Eastern Europe--has issued broad amnesties for past
abuses in order to conciliate previous opponents of democracy.
By contrast, the premise of the Rome Statute is that sovereign
states can no longer be trusted to decide for themselves when and how
to prosecute perpetrators of serious human rights violations in their
own territories. Instead, the ultimate responsibility for such
prosecutions will be vested in an international authority--with no
responsibility for the ultimate political consequences of its actions.
Nothing like this has been attempted before. The few exceptions
that are commonly cited as precedents for this venture are exceptions
that prove the rule. Germany and Japan did not consent to transfer
jurisdiction over their war criminals to international tribunals. They
had both surrendered unconditionally and it was the Allied victors who
determined to impose these trials. The Allied powers, as the acting
governmental authorities in Germany and Japan, did not surrender
prosecutorial authority to some international bureaucrat. Allied
governments made their own decisions about which criminals to prosecute
and justice was not their only concern. So, to conciliate Japanese
opinion, American authorities decided that the Emperor of Japan should
not be tried as a war criminal. A few years after the first Nuremberg
trials, American authorities also decided to cut back on planned
prosecutions of lower level Nazis in Germany, as the advent of Cold War
tensions made it seem more important to conciliate public opinion in
western Germany. Meanwhile, the Allies were quite scrupulous in
excluding themselves from the jurisdiction of the tribunals they
imposed on their defeated enemies.
In Rwanda and the former Yugoslavia, the U.N. Security Council did
impose war crimes tribunals for limited purposes--but on territories
that were so mired in chaos and civil war that they were not in much of
a position to assert their own sovereignty. And in both cases, the
Security Council (or the countries represented on it) did little to
stop ongoing atrocities when they were occurring and then did little to
help catch the perpetrators. These courts are little more than gestures
and rather cheap gestures, at that.
Meanwhile, the European Union--which has its own parliament and its
own flag and a whole series of common institutions--has not yet
attempted to establish a European Criminal Court. Even countries that
are unique in the world for their willingness to share sovereign powers
with a regional authority have not been willing to share their criminal
enforcement power. So we are to imagine that what has not been
attempted in western Europe, even after decades of effort toward
economic and political integregation, can now be effectively
implemented over the whole world!
We are told that most countries in the world now support the Rome
Statute and the requisite majority will soon ratify it. But countries
have voted for all sorts of treaty measures without seriously intending
to change their conduct. The ICC will have no army, no police, no real
coercive force. It will depend on voluntary cooperation. Most
signatories may assume their own nationals will never be prosecuted or
that they can always refuse to turn them over to the ICC if a
prosecution is attempted.
The ICC is certainly not going to impose its will on the most
abusive governments--any more than the International War Crimes
Tribunal for the Former Yugoslavia has deterred Serbian President
Milosevic from committing atrocities. At best, the ICC will be able to
conduct a few symbolic prosecutions. Due process of some sort will be
observed, but in the most literal sense these will be show trials--to
make a political point, in the absence of real authority to enforce a
meaningful international standard.
And the ICC will not be the only forum for show trials.
II. LARGER CONTEXT: PINOCHET WON'T BE THE LAST VICTIM OF AD HOC ACTION
Human rights conventions have for decades asserted that countries
are bound by international law in their treatment of their own
citizens. But most human rights conventions have no serious enforcement
power. A few criminal trials will not, by themselves, give force to
international human rights standards. But they will certainly rivet
international attention and give credibility to the idea that these
standards are really ``law.''
Before the Pinochet case, however, such criminal prosecutions by
outside countries were only taken seriously in the academic writings of
a subset of international law scholars. These academics began to assert
in the 1980s that there was an evolving customary law of human rights,
which had established a ``universal jurisdiction'' for prosecution of
human rights abuses. According to this theory, any country might try
perpetrators of human rights abuses in other countries. Until the
Pinochet case, this was a theory and not even a very plausible theory--
since it asserted a customary law based on almost no actual practice by
governments.
The fact is that governments had been quite reluctant to prosecute
top officials of other states. International law had previously been
supposed to place top government officials in a separate category,
because they were seen as the bearers of a special sovereign immunity
or because their decisions, as sovereign acts, could not be questioned
in the courts of other countries. The legal doctrines have exceptions
and technical complexities. But the fact is that no country had dared
to attempt the prosecution, in its own national courts, of a high
official of another state for his official acts in his home state. The
exceptions (such as Israel's trial of Nazi killer Adolf Eichmann or the
U.S. trial of Panama's Manuel Noriega) took place in cases where the
home country of the defendant did not object.
Pinochet was seized by British authorities in the summer of 1998,
weeks after he entered the country on a diplomatic passport as part of
a Chilean arms buying mission. The aim was to extradite Pinochet to
Spain, where a magistrate sought to try him for ``genocide'' against
Chilean leftists (some 3,000 of whom were killed in the aftermath of
the military coup that brought Pinochet to power). After more than a
year of legal wrangling, a panel of judges in Britain's House of Lords,
its highest court, held that Britain did have the authority to
extradite Pinochet, because Spain did have the authority to put him on
trial--for abuses of his government against Chilean citizens in the
territory of Chile.
As the Law Lords saw the case, Spain could assert jurisdiction for
such a trial under the U.N. Convention Against Torture. The Convention
says nothing about waiving immunity for top officials but the majority
of the British judges held that the waiver could be read into the text,
given larger trends in international law. The Torture Convention
defines torture as ``any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted. . . .'' By that very
vague standard almost every government in the world has probably
committed some acts of ``torture'' and the convention does not limit
its reach to dictatorships or to especially violent regimes.
Even in the Pinochet case, the House of Lords insisted, with
curious legal fastidiousness, that Pinochet could only be tried for
offenses committed in the last months of his rule (after Britain and
Chile had ratified the torture convention) and in that brief period
there were only a handful of documented abuses. It was, according to
British judges, of no relevance that Pinochet submitted to a democratic
referendum on his continued rule and voluntarily submitted to a
peaceful transition to democratic rule in 1990. It was of no relevance
that in almost a decade thereafter, the freely elected government of
Chile had declined to question an amnesty protecting Pinochet from
prosecution there. The standard for international prosecutions,
according to British judges, applies to democratic governments as to
dictatorships. The British judges declined even to recognize an
international exemption for sitting heads of state (though agreeing
that British law would not allow their arrest).
If the Pinochet ruling is good law, it would seem that almost any
country in the world now can seek to impose criminal liability on
officials from almost any other country in the world, so long as the
prosecuting state can get its hands on the officials it wants to try.
And it is up to all other countries to decide whether they want to make
an arrest on a hapless official visitor and extradite him, without
warning, to a state that wants to mount such a trial. The United States
has, in fact, ratified the torture convention, which can now be cited
(on the Pinochet precedent) as consent to have American state
governors, for example, arrested in foreign countries which wish to try
them for abuses in their state prison systems. What British courts have
read into the torture convention, others may read into other human
rights standards. Or it can be argued that we are bound by emerging
standards of customary international law, even when derived from
conventions we have not ratified or ratified with reservations and
other countries may try to enforce these standards with their own
prosecutions of any American suspect they get hold of. At the least,
there is no longer any clear international understanding that such
prosecutions will violate international law.
Advocates for the ICC say the threat of such unilateral actions by
national prosecutors in 150 countries is a strong reason to establish a
centralized international authority to control such prosecutions. But
the fact is that the Rome Statute does not assert exclusive
jurisdiction for the ICC. It says nothing at all about the propriety of
unilateral prosecutions by countries that just want to do justice on
their own--to some other country's officials. To the contrary, the
Statute says that the ICC will only prosecute if other countries have
failed to take action. And advocates of the ICC insist that it will not
have to take action very often because the normal recourse will be
trial by national courts. Why not the national courts of outside
states, as in the Pinochet case?
If the ICC does become established, it will lend even more weight
to ad hoc, unilateral prosecutions by other countries. At least, it has
the potential to do so. It may give the highest international authority
to the claim that some disputed practice is actually a ``war crime'' or
a ``crime against humanity'' or a ``crime of aggression'' or even
``genocide.''
By its terms, the ICC will only have jurisdiction over nationals of
countries that ratify the Rome Statute--except for those who commit
``war crimes'' against a signatory state. So if the United States does
not ratify the Rome Statute, U.S. officials could not be prosecuted
before the ICC, itself, for human rights abuses against Americans. But
a serious danger is that the ICC, in prosecuting nationals of other
countries, will lend credibility and legal authority to similar
prosecutions by individual countries, operating through their own
national courts--and these can be turned against Americans. Putting the
Pinochet precedent together with an established ICC may prove a rather
potent force for expanding the reach of international criminal law.
III. INTERNATIONAL JUSTICE WILL BE HOSTILE TO AMERICAN DEMOCRACY
Would international prosecutions really be turned against Americans
or against our friends? There are reasons to think so.
To begin with, international human rights advocacy has always
displayed a compulsive eagerness to find fault with democracies in
order to balance criticism of more repressive governments. Amnesty
International, for example, took the lead in mobilizing public opinion
in Britain (and elsewhere) for the prosecution of Pinochet--despite the
fact that the democratic government of Chile urged Britain to release
Pinochet. AI also urged the Yugoslav War Crimes Tribunal to prosecute
NATO officials for what it characterized as ``war crimes'' in the
Kosovo bombing campaign. These were hardly anomalous stances. AI's 1999
Annual Report offers twice as much criticism of human rights practices
in Australia as in North Korea, four times as much criticism of the
U.S.A. as of communist Cuba, seven times as much criticism of Israel as
of Syria. (See IPA Review, Melbourne, Australia, Sept. 1999 for a more
detailed analysis.)
One reason for this sort of imbalance is that human rights
advocates strive to demonstrate impartiality by finding fault on all
sides. Another reason is that they have readier access to information
about democratic governments than they have about dictatorships. But it
is also true that the primary audience for human rights campaigners is
in western countries. It is in those countries where they derive their
financial support and their primary media attention. And they cater to
constituencies eager to use the rhetoric of human rights to attack
their own governments on policy matters they disagree with. So we have
had the European Court of Human Rights solemnly informing Ireland that
it must change its laws on abortion and recently telling the United
Kingdom that it must drop its ban on homosexuals in its armed forces.
Meanwhile, the U.N. Human Rights Committee has declared that American
capital punishment statutes violate international human rights
standards--even though the United States made an explicit reservation
regarding capital punishment when it ratified the Covenant on Civil and
Political Rights.
The International Criminal Court will have no real power to compel
countries to cooperate with it. It will therefore have to rely on the
mobilizing efforts of human rights advocacy groups. It will, in all
likelihood, pay close attention to the priorities and concerns of these
groups just as U.N. environmental programs attend closely to the
concerns of environmental NGOs, which mobilize public opinion for their
efforts.
Even some western governments may want to see the United States
threatened--if only a bit--by international prosecutions. At the Rome
conference, American delegates repeatedly expressed willingness to
support an international criminal court if its prosecutions were made
subject to Security Council approval. This would have exempted the U.S.
from any danger that its servicemen would be subject to international
prosecutions for alleged abuses committed in peacekeeping operations.
This proposal seems to have won almost no support. Opponents insisted
it would send an unacceptable signal to provide exemptions for the
great powers. But won't it send an even better signal to launch a
prosecution against an American official?
Finally, we should not take very seriously the idea that an
international prosecutor will be restrained by the moderating
influences of the western countries. At the Rome conference, itself,
Arab countries maneuvered to include, among the definitions of ``crimes
against humanity'' the willful destruction of houses--because this is a
common Israeli form of retaliation for terrorist attacks. The Israeli
ambassador to the conference pleaded with the delegates not to do this.
He was, himself, as he told them, a survivor of the Nazi genocide that
actually launched the concept of ``crimes against humanity.'' Surely,
he protested, it was indecent to compare Israeli security policy with
the Nazi genocide. His pleas fell on deaf ears. If it is convenient for
European governments to conciliate Arab opinion in setting up the
tribunal, will it be less convenient to conciliate Arab opinion with a
few dramatic prosecutions by the ICC?
IV. CONCLUSION: A PRUDENT WARNING
Some people will say that the ``American Servicemen's Protection
Act'' is merely a petulant gesture. The ICC may yet be improved. It may
never prosecute an American. Why not wait until an American is actually
threatened, before deciding how to respond?
I would give two answers. First, the establishment of the ICC will
itself add momentum to a larger trend. It is in our interest to reverse
that larger trend. We should try to stop the ICC from coming into
existence or at least make clear that it is not an important authority
for shaping international law. Whether the ICC does come into
existence, and with what level of support and credibility, is still
somewhat uncertain. If we can discourage other countries from ratifying
the Rome Statute, by proclaiming our refusal to cooperate with it, we
will have achieved something quite worthwhile.
Second, we should remember that these prosecutions are likely to
operate in a twilight zone of bluff and dodge. In the end, Britain
allowed Pinochet to return to Chile with the excuse that he was too
sick to stand trial. Human rights groups, though expressing frustration
at the immediate result, still insisted that an important point had
been made. The prosecutors in the Yugoslav tribunal did not dare to
charge war crimes against NATO but they went through the motions of
investigating to make a formal point.
It is very easy to imagine this sort of game played out against
Americans or Israelis or other American friends who happen to be in
disfavor with ``international opinion.'' Those who set out on such a
prosecution may even think it worthwhile to test whether public opinion
in the United States can be roused to restrain the American government
from reacting too forcefully to the arrest of some particular American
servicemen or official. The U.S. might feel a bit intimidated by
``world opinion'' or ``international law''--or at least, other
countries might hope so, when arresting an American.
In this setting, it is much to our interest to dispel ambiguity in
advance. We should tell the world quite openly that we will not stand
for the arrest of an American--or a counterpart from one of our
allies--simply because the arrest is justified with the encompassing
rhetoric of international human rights protection. Other countries may
want to share their sovereignty with an international criminal court.
We should make it clear in advance that we would regard such action as
an extremely hostile act against the sovereign rights of the United
States. We should make it clear that we will defend our own
sovereignty, whatever other countries may do.
The Chairman. Professor Wedgwood.
STATEMENT OF MS. RUTH WEDGWOOD, PROFESSOR OF LAW, YALE
UNIVERSITY, NEW HAVEN, CT; AND SENIOR FELLOW AND DIRECTOR OF
THE PROJECT ON INTERNATIONAL ORGANIZATIONS AND LAW, COUNCIL ON
FOREIGN RELATIONS
Ms. Wedgwood. Thank you very much, Chairman Helms. Thank
you for allowing me to appear before you. It is a great honor,
and I am pleased to be here.
I may, however, fall into the middle ground here, I think.
I have had some of my most interesting and pleasurable
experiences in the last 5 years talking to and with the people
of the American military.
I had a lovely year a year ago at the U.S. Naval War
College, as a Stockton Professor of Law up there. I had classes
filled with majors and colonels, who would tell me their
concerns about ROE's and worries about border patrol duty when
they are trained for war and combat.
And I have also spent a long time looking at peacekeeping,
its problems, its policies in Haiti, in Bosnia and Georgia. And
I am about to go out to East Timor to look at the U.N.
operation there.
So it has been fun. It has been uplifting. It has really
brought me, for a Vietnam generation, into contact with very
gallant people, whose concerns I take most seriously.
But at the same time, while I feel a real colleagueship
with my friends in the military, I wanted to make a couple of
points.
First is that we all, of course, do not want U.S. GI's,
sailors, marines, airmen, to ever be subject to unfair
prosecution. They give loyal and legal service. And the
American security role abroad is unique and necessary to the
stability of Asia and the Middle East and Europe. And I would
never want there to be a legal Somalia, in which an American GI
was penalized for doing his duty.
At the same time, though, there is a military interest in
having effective enforcement of the law of war. We depend on
that. When our three GI's got nabbed by Belgrade at the
beginning of the Kosovo conflict, there was a little confab
interagency about what to do about them. And ultimately, it was
decided that we had to rely upon the Geneva Conventions to give
them special protection as prisoners of war.
And Geneva, the venerable treaty from 1949 does establish
some of the things that Professor Rabkin thinks are newfangled,
like the ability of any country to enforce its provisions. But
for the protection of American soldiers, a law of armed
conflict that has some teeth is important.
How do we get to this point of the ICC? The United States
has tried a couple of times in the Security Council to set up
ad hoc tribunals for Rwanda and for the former Yugoslavia.
There has, to be honest, come to be a political resistance in
the Security Council to using its powers repeatedly with quite
that latitude.
Many countries thought it would be more deferential to
national sovereignty to have a court be treaty based or not at
all. And that is how the ICC idea got started in the early
nineties, when the United States signed on to the idea.
The concern about protecting American GI's, I think any of
us can make the distinction between the kind of atrocities that
Foday Sankoh commits in Sierra Leone--when he goes lopping off
people's forearms and their legs, including little girls and
women and civilians of all stripe--the kind of atrocities Foday
Sankoh commits as quite a different thing from the sometimes
contentious and close cases about military doctrine.
Some of the Europeans from time to time have not liked our
policy of targeting electrical grids. We feel we have to,
because those support anti-aircraft systems, and we have to
protect our pilots. Or taking out the television broadcast
station in Belgrade. We felt we had to do because the morale
that Slobodan Milosevic was trying to whip up among his people
in wartime was one of the obstacles to getting Belgrade to cave
in.
On those kinds of questions, close questions of doctrine, a
criminal court has no business. Maybe it is too much the lawyer
in me--and I am also kind of a Hans Morgenthau realist--but
there may be some ways that a combination of lawyering and
moxie can substantially protect U.S. interests. If I may quote
Robert Frost, ``Good fences make good neighbors.''
And what Dave Scheffer is trying to do up in New York at
the moment is to push through the U.N. preparatory conference
an agreement that would state that Americans could never be
subject to the court's jurisdiction, so long as the United
States stays outside the treaty. And I suspect that will be as
long as Chairman Helms certainly presides over this committee.
But it would be an actual guarantee of no third-party
jurisdiction. It is a very delicate moment diplomatically. And
my plaint to you would be the following: Good cop/bad cop is
our favorite script from Hollywood. The United States may need
to have something to offer its allies as a positive incentive,
as well as negative incentives, if it is going to be able to
win the day. It is late in the process, unfortunately, from
some people's point of view, for us to be entering this fray.
This has been percolating since 1994.
There are European countries that are going to sign it and
ratify it. It may well be the European court that Jeremy Rabkin
thinks cannot ever come to pass. I think at this point, we do
not want the court to disrupt our NATO relationships or our
other important military relationships.
We do not want the tail wagging the dog. And it may require
a combination of positive, as well as negative, incentives to
persuade countries to respect American immunity as a non-party
to this treaty.
So I would urge the committee to consider leaving their
bill simmering on the back burner. It is out there. Everybody
sees it. Everybody knows what it means. But the timing of this
is such in New York that one cannot work this guarantee of
third-party immunity through the diplomatic process at that
criminal court conference until the end of December 2000. And I
think, therefore, this might be one of those bills that can be
allowed to marinate with great attention and great respect, but
in the fullness of time.
Let me just mention a few other little things, if you might
permit me, just to clarify a few things. One is that we all
share concerns about sovereignty. I like being a democratically
ruled person. I do not want somebody else telling me what to
do. But the ICC, the International Criminal Court, cannot look
at the internal practices of third-party countries.
Second, I also share the concern about due process. It was
too hard won to give up lightly. And there are some differences
between this court and traditional American trial procedures.
There is no jury, although there is no jury in American court
martials either. There is, however, a clearly stated right
against self-incrimination in Article 55(1).
Equally importantly, the treaty would not override the
protection of status of forces agreements, the so-called
SOFA's. I think we have belt and suspenders here. If Ambassador
Sheffer can get his third party immunity agreement by working
this through, culminating in December 2000, and we have our
status of forces agreements in good order, the ICC treaty
itself must respect those under Article 98(2).
The reason why this treaty, if you look at it closely, has
some surprising protections in it is in part because we have
military folks up there working it.
My superb former student, who was a lieutenant colonel in
the Marine Corps and Deputy Legal Counsel of the Joint Chiefs
of Staff, Bill Lietzau, has been up there in the clinch, you
know, cajoling, taking to coffee, making friends, but also
letting them know who the United States is, trying to make sure
that the wording of war crimes fits our doctrine, that the
procedural protections are what we want them to be. I think
this may be the kind of double-hatted role that one needs to
play.
On amnesties, which even human rights people take
seriously--because look at South Africa, look at Salvador, look
at Guatemala, look at Central Europe, Spain and Portugal, Spain
especially, shades of Pinochet, the way they got from
dictatorship to democracy was with amnesties.
There is a lot in the human rights community that cannot be
talked about from time to time. And one of the things they are
coming around to understand is that this criminal court has to
respect amnesties. It is a grudging concession that they are
making, but ultimately, under the definition of what is a
permissible, admissible case, a respect for locally and
democratically chosen amnesties has come to be the consensus
position.
And finally on the point about democracies, does the
court's treaty overtly distinguish between dictatorships and
democracies? Not overtly. But the fact of the matter is that
democracies do not commit systematic war crimes. Our folks
train under humanitarian law. We have Judge Advocates General
deployed in the field to answer any questions commanders have.
We live by the code of Geneva and The Hague. The law of war
is something that every honorable and professional military man
I have ever met takes seriously for his own protection and
because we are a moral and a religious people.
Does the treaty text type out the word democracy? No; but
the fact of the matter is, democracies do not commit this kind
of shenanigan. So I would just urge the committee to have
patience and to publicize your bill for sure, but think about
the possibility that a certain reticence may help to cajole our
European friends, who increasingly, in the post-cold war world,
seem to have their own independent sense of what they are
about.
It is a very interesting time in security politics, because
with the diminishing of the Russian threat, the Europeans are
all of a sudden all kind of independent and do not pay as much
court to us as they once did. But still, ultimately I think
they are aware, as they must be, that we are responsible for
security in South Korea, in the South Pacific, South Asia, the
Middle East, not them.
Europe has not yet risen to a broader responsibility for
global security. It is way behind the mark on that. And I think
ultimately they will respect our military needs.
Thank you.
The Chairman. Thank you, ma'am.
[The prepared statement of Ms. Wedgwood follows:]
Prepared Statement of Professor Ruth Wedgwood
THE INTERNATIONAL CRIMINAL COURT AND THE PROTECTION OF AMERICAN
SERVICEMEN AND OFFICIALS
Thank you for the chance to discuss with the committee the crucial
question of how to protect American service personnel and American
citizens in the international arena. I share the committee's concern
that we should do nothing in the international arena that would ever
penalize American soldiers, sailors, airmen, or marines for their loyal
and lawful service on behalf of their country. This concern has been
strengthened by my own close contact with American military operations.
I have visited the American peacekeeping operations in Bosnia and
Haiti. In 1995, I cochaired a seminar series on Capitol Hill for the
Congressional staff on ``Lessons Learned in Peacekeeping,'' which
looked critically at our experiences in Somalia, Haiti, Bosnia, and
elsewhere. As a professor of law at Yale University, I have written
about the law of armed conflict, including the ambiguities in
international law about the nature of self-defense and humanitarian
intervention. In 1998-99, I had the pleasure of serving at the U.S.
Naval War College in Newport, Rhode Island, on sabbatical leave from
Yale, as the Charles Stockton Professor of International Law. At
Newport, I served as a senior civilian player in the College's war
games, and spent much of my time talking to the officers in my classes
about the problems they encountered in their own operational
responsibilities.
The American military has a direct interest in the effective
enforcement of humanitarian law. The law of war is designed to protect
the dignity and safety of men in conflict who may have the misfortune
of falling into the hands of the enemy as prisoners of war. It is
designed to protect civilians against deliberate mistreatment in
occupied areas. And it is designed to prevent terror tactics that abuse
the innocent civilians for whom our military fights. The American
military trains and fights according to the standards of international
humanitarian law. The Pentagon deploys judge-advocates-general into the
field, in peace and in war, to give advice to our military commanders
on any questions that may arise on the requirements of the law of war.
It is the outlaws of the international community--men of the ilk of
Saddam Hussein, Slobodan Milosevic, and most recently, Foday Sankoh of
Sierra Leone--who have frequently and deliberately cast aside all
standards of decency in mistreating civilian populations through ethnic
cleansing and atrocities against innocent civilians.
In 1993, the United States worked to create an international ad hoc
tribunal to prosecute the war crimes and atrocities arising out of the
conflicts in the former Yugoslavia, including Bosnia. This
international court was created through the power of the United Nations
Security Council, and has been supported by the United States with
personnel on loan, intelligence information, and the assistance of the
U.S. military in arresting defendants and providing area security to
court personnel who must investigate facts on the ground. The
jurisdiction of this court has been broad enough to indict Slobodan
Milosevic for his crimes in Kosovo as well. The past president of the
ad hoc tribunal was Judge Gabrielle Kirk McDonald, a former U.S.
District Court judge from Houston, Texas. An American judge currently
serves on the ad hoc tribunal, Judge Patricia Wald, who was formerly
the chief judge of the U.S. Court of Appeals for the District of
Columbia Circuit. The United States has also supported the creation and
operation of an ad hoc tribunal to try the criminals who organized the
1994 genocide in Rwanda, in the Great Lakes region of Africa.
The ad hoc model has its limitations. There has been concern that
other permanent members of the Security Council may veto the creation
of future ad hoc tribunals. There has also been resistance to taxing
the Council's power and political authority beyond its sustainable
limits. Since 1994, the United States has been part of a negotiating
process to attempt to create a standing structure that could try
international rogues who commit crimes in the future.
The negotiating process has been a difficult one for the United
States. The Rome conference in 1998 coincided with a moment when the
members of the European Union were reexamining their security role. The
influence of non-governmental organizations was more evident than ever
before. And the rushed five-week diplomatic conference was not an ideal
setting for airing our concerns.
As Americans, we do have unique concerns. The United States has
global security obligations that no other country will undertake--in
our steadfast commitments in Europe, the Middle East, and Asia. We have
over 200,000 troops stationed abroad. We spend more money on
international security than Germany, France, the United Kingdom, Italy,
Spain, Belgium, the Netherlands, Canada, Australia, Japan, and South
Korea combined. We pull the heavy load in peace enforcement and anti-
terrorist actions, as well as participating in peacekeeping and freedom
of navigation exercises. Each time the United Nations has called for
nation states to use force against an aggressor, the United States has
been at the center of the coalition. We are the only nation capable of
sustained transcontinental operations, able to make unique
contributions in airlift, logistics, and intelligence. The deterrent
power of American military force provided the backbone of the free
world during the Cold War, and is still the spine of post-Cold-War
security. But the unique nature of American power, and its long
reliability, means that at times, even our friends take us for granted.
The concern of the United States in the ongoing negotiations
concerning the permanent international court is to make sure that the
court knows how to exercise its power wisely. The record of the ad hoc
Yugoslav tribunal shows that an international court can handle only a
limited number of matters and must prioritize its workload. The
permanent court is designed to target the atrocities of the bloody
civil conflicts of our age, not to interfere with the legitimate
exercise of military power for the protection of our common interests.
Even a schoolboy can distinguish between the atrocities committed by
rogue actors, and the legitimate military operations that sustain our
security.
Uniformed officers of the United States military have been front
and center in the U.S. negotiating team on the criminal court, to make
sure that the court's articulation of the law of war fits our own
conception. We have been working carefully through the court's statute,
to pin down the elements of offenses in any grey areas, to assure that
no American service personnel could ever be caught inadvertently in the
traces of an international court.
In addition, the American team has worked hard to guarantee that
the court will have to defer to the reliable processes of American
military justice. The lawyers' idea of ``complementarity'' means that
the international court has a role to play only in countries where the
system of justice has broken down.
At the same time, as realists, we must be aware that there are
adversaries and adventurists who may try to misuse the court to
frustrate American security interests. Even our closest allies may have
differing views on the details of how military operations should be
conducted.
There are principles of the law of war that are clear in theory,
but hard to apply in practice. This includes the principle of
``proportionality'' which says that the damage to civilians in a
military operation should be reasonable in relation to the military
advantage. This also includes the rule against targeting so-called
``civilian objects''--and the difficult question of how these objects
are defined. In war, the United States may need to shut down an
adversary's electrical grid that supports his anti-aircraft system, or
to shut down the broadcast station with which he sustains his war
effort. We need to protect our ability to call the shots as we see
them, in the legitimate exercise of the law of war.
There is every reason to believe that the International Criminal
Court will wish to work hand-in-glove with NATO and the United States.
This has been the story for the ad hoc tribunal for the former
Yugoslavia.
At the same time, a permanent court is a new concept, and the role
of foreign judges, who are not members of the American political
community, needs to be settled in practice. We need to be sure that
they will read the law reasonably, and will exercise good judgment to
avoid any chance that the court could become a political plaything.
My recommendations would be two-fold.
First, the United States should take steps to make sure that the
members of the International Criminal Court are educated in the nature
and demands of modern military operations. According to the Rome
treaty, the judges of the court must have professional experience
either in criminal law or international law. What is sorely wanting as
a third prerequisite is experience in and knowledge of military
operations. The International Criminal Court--even if the United States
never chooses to join it as a party--will be a more productive
institution if we help to provide the necessary expertise to support
wise judgments. This could include a roster of expert military
witnesses, or a military advisory council, or informal contacts through
conferences and educational institutions. As every American President
knows, military men have a distinct expertise and knowledge, and one
ignores this wisdom at one's hazard.
Second, the United States must work to assure that its military and
political personnel are not subjected to the jurisdiction of the
international court for authorized operations, under the guise of
``third party'' jurisdiction. A surprising number of countries have
argued that because the Geneva Conventions of 1949 allow the exercise
of national court jurisdiction over accused defendants who fall into
the hands of the enemy in an international war, this national
jurisdiction can also be delegated to a treaty-based court--even where
the accused's state has remained outside the treaty. The United States
has firmly opposed this view.
It will take time if the United States is ever to consider joining
the court. In the meantime--and how long that is, is up to the Senate
and the President in their judgment--we must be sure that our personnel
are not subject to the court's powers of arrest for authorized
operations.
We are at a delicate diplomatic moment in New York at the
preparatory conference. The countries that have signed the Rome treaty
and wish to join the court have every reason to want a ``good
neighbor'' policy with the United States. Our negotiators, including
expert military members of the U.S. delegation who have worked
throughout the process, are in a close order battle, seeking the most
effective means to persuade our friends and allies that they should
support the United States in this concern. This is a matter too
important for mere lawyers and technicians--it involves a profound
judgment as to how the International Criminal Court can best function
as a responsible institution and how to maintain the amity and working
strength of NATO and other allied relationships.
The timing and atmosphere of these negotiations is crucial, and for
this reason, as a modest observer, I would recommend that the applecart
not be upset by any draconian measures. The State Department is engaged
in high level capital-to-capital discussions about the importance of
this issue, and is urging its allies to make a mature judgment about
their long term interest in a responsible and effective court.
While it is too late to amend the text of the Rome treaty, the
United States has proposed a rule under Article 98 of the treaty that
would make clear that the court must observe all applicable
international agreements in the exercise of its powers of arrest or
acceptance of surrenders. This rule is on the agenda of the current
``prepcom'' in New York, which adjourns on June 30.
At the same time, we are discussing with our allies the content of
a key international agreement--the so-called ``relationship agreement''
between the court and the United Nations. This agreement could bar
third-party arrests or surrenders of the nationals of non-parties. The
United States is working with its allies to frame this agreement in a
way that might permit the court to reach the leaders of rogue states
that have committed the most extraordinary outrages, while protecting
the personnel of responsible militaries that engage in peace
enforcement and the maintenance of international security. This
agreement is likely to be on the agenda for the prepcom in December
2000, and the United States must gain the support of its allies in the
intervening period.
My own advice is meant to be agnostic. Whatever one's views of the
merits of the International Criminal Court--pro or con--it is crucial
that the United States and the court not start down a road of mutual
acrimony. Our NATO allies and many other countries apparently intend to
join the court. Some of them have concluded that the United States will
only be a spoiler and should be marginalized in the negotiations. But
others of our friends have become more cognizant of the unique
operational role of the American military and the legitimate reasons
why we may be wary of an untried and untested institution. The strategy
that may best serve American interests is to show our allies that their
desire for a responsible court to meet the atrocities of a Foday Sankoh
is consistent with the exercise of America's unique security role in
the world.
The Chairman. Let me say that the absence of Senators is
not meaningful in terms of interest. They are tied up on
conference committees and all the rest of their commitments.
And I know all three of you understand that. And I was
cautioned by two or three Senators, or more than that, at the
Senate Republican Policy Luncheon today that they could not
attend.
They said, ``Now I want to submit a question or two'' and
so forth. So you will be getting some mail from the U.S.
Senate. And I hope you will be responsive to the questions.
Cap, you served as Secretary of Defense for, what was it, 7
years?
Secretary Weinberger. Seven years, yes, sir.
The Chairman. I know a little bit about the Pinochet case.
I went down there to Chile a couple of times, as well as to
other countries. And what I saw and what I heard from the
people is very much different from what is being published and
was being published at that time in some of the media.
Now, are you concerned about the effect of the Pinochet
case and the nearing establishment of an International Criminal
Court on U.S. national security decisionmaking?
Secretary Weinberger. Yes, sir. I think that if you have a
court of this kind and we do not get--when we either do not
join it or we finally work around and get them to give us some
concessions so that we would be a member of it, either way,
there would be a very considerable additional reluctance on the
part of the regular military and the Pentagon, and I would hope
among the civilian leadership of the Pentagon, to commit forces
into countries and situations where we have not worked out a
status of forces agreement that covers the kind of rights and
protections that we think are necessary, and they differ in
each country, for the protection of the troops.
It may be that some people will argue, as we have just
heard, to the effect that the treaty for the International
Criminal Court would not override status of forces agreements.
That may be what the Statute of Rome says that created it. But
bear in mind, sir, that this court is going to make its own
interpretation. And they will be the sole judges of what they
think it means.
And if they feel that a status of forces agreement is
inconsistent with, or incompatible with, something that they
want to do, they would not hesitate, I am sure, to reach the
conclusion they wanted to and, in effect, override the status
of forces agreement, regardless of what the treaty itself says.
So I think there should be a very cautionary note induced
into every situation as to whether we thought we should put
American forces into any country to achieve a result that we
think is essential for our own national security, our own
national policy, if we thought that the troops were going to be
subjected to this kind of potential prosecution by a court over
which we have basically no control, and in many years perhaps
not even membership on the court itself, assuming we joined the
treaty. And the court would attempt to assume jurisdiction,
even though we had not joined it.
So all of those would be--they would certainly lead me to
be very cautious about deploying American troops in the absence
of specific protections of the kind that are covered in your
bill or that would be worked out in an agreement with the host
country. And so I think it could very well affect our whole
foreign policy in ways that are quite adverse to it.
The Chairman. I think you are exactly right. Let me
followup with a question that is sort of personal. Back in
March, I think the tail end of March, maybe the 26, 27, along
in there, the New York Times reported that the FBI had warned
several former government officials to take care in traveling
to certain countries, including some European countries, in the
wake of the detainment of Pinochet.
Did you receive any such warning?
Secretary Weinberger. Did I?
The Chairman. Yes, sir.
Secretary Weinberger. No, sir. I am too ``former.'' I do
not think that there would be any particular interest in me.
But theoretically, it would not be impossible for Libya to
claim that we did not treat them nicely when we conducted the
raid, which was essential to punish them for harboring
terrorists and all the rest. But I did not receive any such
warning, no. I think they have forgotten me.
The Chairman. Oh, I think you were up to date in Kansas
City. I do not think you are a former former, and we are glad
to have you here.
Dr. Rabkin, a good friend of mine, and perhaps a friend of
yours, is the Secretary of State Madeleine Albright. I talked
to her last night, but she did not mention it: She has
characterized a good neighbor policy toward the International
Criminal Court; that is, that we should cooperate with the
court without being a formal party to the court.
And I want to ask you: Would that lend legitimacy
notwithstanding to an institution I consider to be undeserving
of American support of any kind? How do you feel about that?
Dr. Rabkin. She is a friend of yours. She is not a friend
of mine, actually. And----
The Chairman. She is a pretty nice lady.
Dr. Rabkin [continuing]. I think it is a terrible idea. I
mean, this thing is a menace. And we should be trying to snuff
it out. We should not be trying to get on with it in a
neighborly way.
And if I could just use this occasion to respond to one
thing that is very pertinent--could I?--that Ruth Wedgwood
said, which was, well, we do have an interest in having some
authority out there which will prosecute violators of the
Geneva Conventions. And I just want to say, that is wrong. We
do not have that interest.
Any country that has custody of somebody who has attacked
American troops in a way that is contrary to the Geneva
Conventions, any country that has custody of that war criminal,
can just as well hand him over to us as to The Hague.
We have no particular stake in saying, ``Oh, please, we
would like to have them tried in The Hague.'' Why try them in
The Hague? We can try them ourselves. We have done it before.
We know how to do it. I do not think we have any interest in
having this thing go forward, none.
The Chairman. I searched in my book here for a biographical
sketch. How many years did you spend in the classroom?
Dr. Rabkin. Do you mean teaching?
The Chairman. Yes, sir.
Dr. Rabkin. Twenty now.
The Chairman. Twenty?
Dr. Rabkin. Yes.
The Chairman. Well, you are a good teacher. I enjoyed----
Dr. Rabkin. Thank you.
The Chairman. I enjoyed very much your presentation,
because you reminded me of a professor I had in school years
ago.
Dr. Rabkin. Thank you.
The Chairman. There is one question I particularly wanted
to ask. And that was of you, Professor Wedgwood.
By associating itself with the International Criminal
Court, which is modeled on the European prosecutorial model,
would not the United States be accepting a system which lacks
constitutional safeguards, such as the presumption of innocence
or right to cross-examination, or right to confrontation, or
trial by jury?
That was posed to me as a question, and I pass it along to
you.
Ms. Wedgwood. Yes, sir. Well, I do think if debates on the
International Criminal Court ever got along farther in this
country, you would have a very interesting conversation, where
folks who are concerned about American military power might
well have close allies in the American Trial Lawyers
Association, who would be concerned about constitutional
protections.
There is, however, kind of a civil war going on in the
Yugoslav War Crimes Tribunal, the civil lawyers against the
common law lawyers. And basically the common law lawyers have
won. The Yugoslav tribunal's procedure looks a whole lot like
an American courtroom. And frankly, so does the ICC. There is a
right against self-incrimination and the presumption of
innocence and a right to cross-examination.
There are a few issues that do concern me. There is a right
of appeal by the prosecutor, which you never have in this
country, a right of appeal from an acquittal. And there is no
jury trial, which is a central tenet of American jurisprudence,
the right to be judged by your peers.
And those are going to be difficult debates, because yes,
it is true that in court martials GI's do not get juries
either. But on the other hand, this is not strictly a military
court.
If I might just say one last thing, on the problem of
errant countries, Libya, of course, has already indicted our
fighter pilots for bombing them in Tripoli in 1986. And
Yugoslavia has purported to indict us. I am not concerned about
fractious rogues who try to strike back at us. We are big
enough and tough enough and strong enough. And to be honest, I
would think that a responsible American Cabinet Member is never
really going to be deterred by that kind of shenanigan.
On the court, I do think we can kill them with kindness.
And there I disagree with my two colleagues on the panel here.
I do think that the way that we transformed the peacekeeping
operations department at the U.N. was by kind of moving in and
setting right their operations. And to some degree, we are
going to have to, I think for our protection, do the same thing
with this court and educate them about modern military
operations.
The Chairman. Now you said, right of appeal?
Ms. Wedgwood. Yes, sir.
The Chairman. Let us take a corporal from Chinquapin, North
Carolina, who is over there somewhere, and he gets charged with
whatever.
Ms. Wedgwood. Yes, sir.
The Chairman. Now to whom would he appeal upon conviction,
to the same court that convicted him?
Ms. Wedgwood. If a--it is hard for me to imagine that an
American soldier ever would be before this court, because we
take care of our own military justice problems here just fine,
thank you.
But in the very hypothetical that an American GI could
somehow be before this court, he would appeal to the appellate
chamber of the court, which is staffed by judges who were
chosen by the treaty party members.
Dr. Rabkin. It is the same court, in other words, Senator.
He would appeal to another division of the same court, created
in the same manner, and staffed in the same way, and without
any required input by us.
The Chairman. I do not think I want to be tried by that
court.
Dr. Rabkin. I would not care to argue before such a court,
either.
The Chairman. Cap, our troops will be law abiding when we
are deployed over there in nations abroad.
Secretary Weinberger. Yes.
The Chairman. Professor, you are good.
All three of you are.
Do you think that the Framers of the Constitution ever,
ever contemplated a surrender of sovereignty by the United
States on a scale which would be represented by the United
States' accession to the Statute of Rome?
Dr. Rabkin. Absolutely not.
The Chairman. Absolutely not. Is that your final answer?
It is a good one. You are right.
Dr. Rabkin. I mean, I think they would just be appalled by
this. They would just be appalled by this, because, you know,
they went to a lot of trouble to set up a constitutional system
here----
The Chairman. Exactly.
Dr. Rabkin [continuing]. In which we have constitutionally
accountable officers who govern us. And here we would say,
``Oh, yes, but now we are going to, by treaty, set up something
which sits on top of that constitutional system and has
authority over it.'' I think they would regard that as just
unbelievable, that we would even be thinking about it. And yet
we are thinking about it.
I mean, let us go back to that. The Clinton administration
helped to get this thing going. The Clinton administration is,
if not the father of this treaty, at least, you know, godfather
of this treaty. Right? And now they are saying, ``Well, OK, it
did not turn out quite exactly right--well, maybe it could be
fixed a little bit.''
But it is not a question of fixing it. What were they
thinking in the first place? They have launched this forth as
something that we could actually join. How could we possibly
join a thing like this?
The Chairman. Cap, I am trying to think of something to be
illustrative in the range of possibilities. Imagine that the
United States hands over some documents or some classified
information, or perhaps some suspect of war crimes. Under that
set of circumstances, can such cooperation endanger American
interests, even as a non-party, by legitimizing the court and
its claim of jurisdiction over Americans?
Secretary Weinberger. Oh, it is perfectly conceivable,
Senator, yes. You have all kinds of documents that might be
giving instruction to the troops, rules of engagement for them,
things that they should do in certain contingencies. There
would be an enormous amount of potentially classifiable
material that should not be turned over to anyone, let alone a
court that would not have any experience in dealing with the
use of classified material in the course of a trial.
We have provisions for turning over classified documents to
our own courts, in which case they strike out anything that is
indicated to be classified or anything that should not be used.
And whether or not the whole document can be used is governed
by the rule of law and all the rest.
This court would not be governed by any of those
precedents. It would not have any to start with. And it would
not be governed by any of the rules that we consider essential
to preserving our own security. And they would be able to
demand the production and the transmission of these various
documents.
Some people can say, well, we would not have to comply.
Well, that leaves us in the situation then of headlines all
over the world saying we are defying an international court.
And we should not be in that kind of position.
You may have noticed, Senator, that just last week we were
required, under a torture agreement we were a party to many
years ago, to turn in a report of whether we had committed any
acts of torture with respect to prisoners or others in the
American judicial system, American criminal court system. And
we said we did not think we had, but yes, it was true we had
done a few things that were rather brutal.
Immediately various nongovernmental organizations, Amnesty
International and others, picked that up and said that we had
been guilty of all kinds of atrocities and brutalities. And all
this plays out on the world stage before this group, because we
are required to turn in this kind of a report. We have to try
to justify the actions of a number of different jurisdictions
all over the country, Federal, state and local.
And these are the kinds of things that we have to, in a
sense, answer to these world bodies for. This is a non-related
agreement, of course. But it is the kind of thing that can
happen, when you get into these internationally controlled
organizations.
And they then will say that the practice is used to
transport extremely dangerous criminals from one jail to
another or from jail to court, that those tactics are not fair,
that you should not put on handcuffs or you should not put on
so-called stun belts that are designed to keep these extremely
dangerous criminals, who have been on Alcatraz and so on, from
hurting anybody in the court or in the sheriffs' groups or
whatever transporting them.
We have to try to say that this is why we do it. And we
have to, in a sense, defend ourselves and try to excuse what
some other critical organization might say about it. And there
is no shortage of organizations that are eager to find
something that we do wrong, some of them at home.
The Chairman. Ms. Wedgwood, nearly all countries refuse to
extradite their citizens to the United States. That is my
understanding. I am not a lawyer, but they just refuse to
extradite them for crimes they commit in the United States.
And the question came to my mind, why should the United
States involve itself with an international court composed
almost entirely of states that do not cooperate fully with the
United States bilaterally. Do you have any opinion about that?
Ms. Wedgwood. Well, it is an insightful question, Senator.
There are some countries that do extradite their citizens and
some countries that do not. The Scandinavian countries, Latin
countries tend not to extradite their nationals to the United
States. Mexico can waive that bar. Some countries have a
constitutional requirement that they cannot send us defendants.
To sign up to the ICC, they are going to have to agree to
turn over their nationals in cases where their own national
justice systems have broken down. Extradition has always been
built on reciprocity.
We have negotiated a host of bilateral extradition
agreements--I used to work in the Department of Justice back in
the late seventies, and I prosecuted in the eighties and had a
Bulgarian spy and a couple other good national security cases.
And basically, you have to rely on reciprocity and cooperation.
The British will extradite to us. The Canadians will. Other
countries will not. We try to negotiate effective bilateral
extradition treaties that protect our interests.
Could I also just possibly bend your kindness with a
footnote on the issue of classified information?
The Chairman. Sure.
Ms. Wedgwood. I take that very seriously. Back in the late
seventies we were worried about the problem of so-called gray
mail, where certain kinds of cases could not be properly tried
without prejudicing American national security information.
And we devised a series of procedures that were later
passed by the Senate and House in the Classified Information
Procedures Act to think about ways that you could put on a
trial that was reasonably fair and still protect vital
information.
The one absolutely solar plexis blow that we did not permit
the ICC treaty to do is we have protected our national security
information. The court cannot require the turnover of
classified information. That was a line in the sand for the
U.S. delegation. And I think that has been met forthrightly in
the treaty text.
Thank you.
The Chairman. All right. One final question, I guess; I
want to throw it open to any one of the three of you. I think
you know that the International Criminal Tribunal for the
Former Yugoslavia recently completed an 11-month investigation
of alleged NATO ``war crimes'' in Kosovo. Now the court wisely
did not proceed with indictments against NATO, but it did
declare its authority to judge NATO actions.
Now most Americans are probably unaware that one of the
judges sitting on that court is from what I call Red China, you
see. And my question is: Should Americans be alarmed by the
fact that a judge from a Communist country--and I say that as a
matter of fact, because that is what the Government of Beijing
is--is sitting on a court which claims the power to indict and
try American officials and service members.
You, you, or you tackle it. Go ahead.
Dr. Rabkin. You know, this was not something that the
court, by a kind of Warren court judicial activism, reached out
for. That is not what is going on here. The Clinton
administration, which set up this court, agreed in the charter
of this court to say that it had jurisdiction over all
participants in military action in the former Yugoslavia. It
was perfectly obvious at the time that this jurisdiction could
include us.
After the Kosovo war--or whatever we are calling it now,
bombing campaign, air campaign--the Security Council passed a
resolution, which presumably we were very involved in drafting,
which said, ``Now there will be this and this and this in
Kosovo. And everybody is urged to cooperate with this war
crimes tribunal.'' And it made no exception at all for NATO
forces.
They do have jurisdiction over this. I think the moral of
that story is when Secretary Cohen--I just saw him. I mean, I
saw his statement this week saying, ``It was an outrage, it was
an outrage, that the Yugoslav tribunal challenged us.'' Listen,
if you sign on to a thing like this, you have to expect that
they will call you on it sometime.
I think the moral of this story is that you should not play
around with these things, because--you should not rely on what
we seem to have been relying on, which is ``Oh, they would not
dare, they would not dare.''
And I do not think the prosecutors there were happy to do
this. I really do not think the prosecutors went out of their
way to do this. I think it was the other way around. These
advocacy groups came to them and said, ``What about this? What
about this? What about this? What about this?'' And the
prosecutors thought they would look weak or partisan. They
thought it would be discreditable to them, if they did not look
into these charges.
And you cannot really look into it unless you do some
interviews. And so you call in high-level NATO officers and
interrogate them. We have to expect that this will happen if we
put ourselves under an international tribunal.
The Chairman. Since you just talked, you go first, Cap, and
then back to you, Professor Wedgwood.
Secretary Weinberger. Well, Senator, I think part of this
stems from the fact that few people seem to have any idea what
combat is all about. Combat is a very messy business. It is not
tidy in any way. And you cannot play it by a certain
predetermined rule. You have to do what occurs to you at the
point.
If you have to take evasive action, if you have been
assigned a bombing target, and you have to let your bombs go on
a secondary target, you may very well do some injury. There is
no question about it. That is why we try our best to do
anything we can to avoid war.
But if you are going to have a situation in which somebody
can be sued in a foreign court to which we are not a party and
charged or perhaps punished for actions of that kind, the
recruitment is going to be far lower than it is now. And it is
something that I think we just have to realize would completely
nullify our capability to defend ourselves or to take actions
in other countries that we think are compatible with our
foreign interest.
And there is no question at all, and I agree very much with
the professor, that the administration has had a record of
preferring to have all kinds of matters settled by
international bodies rather than by our own individual
unilateral or bilateral actions.
And that is why I worry about the status of these
agreements that we have with a number of countries that have
been worked out very carefully as to how we can protect our
troops going over on missions which frequently they have
requested us to perform.
So I think that the seeds of a great deal of very unhappy
results are in this treaty and in our continued attempts to
change it. Just last week, this week, we have been urging them
to make a few changes. And in the course of doing that, it
always happens in negotiations, we agreed to take out one
provision that we thought was reasonably helpful.
And that was that the Security Council itself could
determine whether or not a particular person who is summoned to
be tried could be excluded. And the reason we thought that was
helpful was because we have a veto power on the Security
Council. Because of that, it was objected to. And our
negotiator agreed to take it out.
So this is the kind of thing, as was just said, of playing
around and trying to improve things that are extremely bad
ideas from the start.
The Chairman. Professor Wedgwood.
Ms. Wedgwood. Carla Del Ponte was a tough-minded Swiss
prosecutor before she went to The Hague Tribunal for
Yugoslavia. Her decision not to open a full investigation of
NATO was well founded in fact and law. I think she felt
obliged, because the statute was indeed worded in terms of the
territory of Yugoslavia, to show that she could look at it in a
fair-minded way, sauce for the goose, sauce for the gander.
The dilemma of American policy is really that it is very
hard to devise a jurisdictional scheme that will catch the
Foday Sankohs of Sierra Leone, the Slobodan Milosevics and the
Saddam Husseins, that does not have a broad compass that can in
theory trouble other people.
But I do have faith in the law-abiding nature of our
military. I think we should think about letting this court--see
how it turns out. It is not benign neglect; it is educational
involvement. Teach them about armies. Teach them about the
demands of modern military operations.
One of my concerns, Senator, if I may just say very
briefly, is that in peacekeeping operations, to protect our
troops, we have felt the need to do things that were
innovative. Like our bubble exclusion zone in the tanker war in
the Iran-Iraq war, when we were escorting Kuwaiti oil tankers
and told other vessels to stay away, even though it is not
provided for in the Law of the Sea Convention. And in Mogadishu
where we said that truck-mounted automatic weapons--so-called
``technical'' vehicles--were going to be considered
presumptively hostile, as necessary ROE's to protect our folks.
They may be innovative, but they should not be mistaken for
crimes. What I think one might do is hang back with a threat of
the Sword of Damocles dangling over the court and see if people
of prudence and judgment are the ones who exercise their
offices there. And if they are in fact behaving irresponsibly,
the obvious consequence follows.
The Chairman. I have kept you here longer than I had
intended to do. Let me say this: I am glad that the rest of the
Senators have other commitments because I have enjoyed having
this all to myself. I get to ask all the questions I want.
I never make a speech, Cap, that while I am driving home, I
do not say, ``Gee, why did I not say such and such? I forgot
about that.''
I do not know whether you folks have the same situation.
But let us take a minute or two for each of you. And if you
have such a windup statement, I would appreciate it.
Cap, do you have one? Do you have anything you want to say
in addition to what you have said?
Secretary Weinberger. No. I think that covered it pretty
well, Senator. I will say just one closing point, and that is
that there is a tremendous double standard here. I mentioned it
in the course of the presentation.
And that is when you have a complete brutal assassin like
General Ratko Mladic of Yugoslavia, whom everybody says should
be tried and all the rest of it, and they report they cannot
find him, when he is up making speeches every half-hour. It
seems to me that they have made a conclusion or decided that
this is somebody that they really do not dare want to do this
to.
But it is that kind of a double standard that I think could
be applied here, that would make an additional reason why this
should be something we should not think about. And because of
the fact that it could be made to apply to us, it makes the
passage of your act all the more necessary.
The Chairman. Professor Wedgwood.
Ms. Wedgwood. Sir, if the ICC is going to ever breathe any
breath out of the grave, it is going to need the United States
for intelligence, for perimeter security, if it wants to exhume
a mass grave in Yugoslavia or some other place, for witness
relocation, for diplomacy and support. I did an amicus brief in
front of the Yugoslav tribunal, trying to protect classified
information from turnover, and yet to allow us to demand of
Croatia what we needed to pin one of their generals, who had
engaged in ethnic cleansing, brutal ethnic cleansing. U.S.
diplomatic support was crucial.
It is hard. But basically, the proposed International
Criminal Court is going to need U.S. assistance, if it is going
to amount to anything. So I think the ``kill them with
kindness'' strategy can work. And I do think, also, just like
we are all scared of ever going to court--just as the worst
headache in the world is to have a lawsuit, to have a judge who
knows little about your industry or your product--one does need
to educate judges of all stripes about the particular demands
of occupations, including the honorable occupation of arms.
And finally, just to tease my friend Jeremy Rabkin in
closing, the Founding Fathers actually did take international
law a good deal more seriously than we do.
If you read James Wilson's lectures in 1790, or Alexander
Hamilton who was as hard-headed as they come, they both think
you have to have some structure of international law to protect
American interests. We were, after all, a trading nation. We
wanted rights of neutrality.
The problem is to get it right, the right kind of balance
between local self-governance and international involvement.
And my hope is that if Ambassador Scheffer succeeds in his
attempt to get this third-party immunity for American GI's,
until and unless we ever join the treaty, that this will allow
some kind of productive cohabitation with the ICC.
The Chairman. Very well.
Last but not least, Dr. Rabkin.
Dr. Rabkin. Thank you. Let me make three quick points. The
first one is just in response to Ruth Wedgwood. I was not
saying that the American Founders were disdainful of
international law. I quite agree with you that they did respect
international law. The Declaration of Independence starts with
an appeal to the rights of nations under international law.
But what I was asked was, how would the Founders feel about
the International Criminal Court. And on that I think it is
very clear they would be appalled. And one of the authorities I
would appeal to is this article that you wrote a long time ago,
in which you developed this point that they even had great
concerns about extraditing an American at all, even to Britain,
let alone to The Hague.
Let me make two other substantive points. First--and I do
not mean this as tit for tat. But I think that what Ms.
Wedgwood is saying here is what defenders of this generically
say, which is, ``Let us not throw out the baby with the bath
water. You know, this is really important.'' And she gave the
example of Sierra Leone. ``We want a court that can deal with
that,'' she says.
But I say what those people need is not a court. What those
people need is an army. I think we have this completely
backward to keep pretending that because there are horrible
atrocities taking place in the world--and there are, I agree,
some very horrible ones--the solution is to send in a squad of
lawyers.
What happened in Rwanda was a horror and it was a disgrace
that the United States stood by, that the U.N. stood by. But we
are not fixing it by saying, ``OK, let us have some trials
afterwards.'' I mean, if you want to deal with atrocities like
that, you have to think about military responses. Maybe we are
not up to it. Maybe nobody is. But that is what we should be
thinking about, not playing around with trials and lawyers.
That is the very least of the problem, if you're worried about
atrocities.
And the last point I want to make is again in response to
what Ruth is saying. She says, and defenders of the ICC in
general say, ``Well, we can fine tune it, you know. It may not
be perfect now, but it will not be that bad. We will tinker
with it, and then it will not actually threaten any American.''
And I want to say there really is a point of principle
here. Even if you could assure me by some back channel insider
connection that the ICC will not go after an American, at least
not for the next 10 years, I still would think this was very
wrong in principle. That's because I think one of the reasons
why so many people want this institution to be established is
they want to establish in principle that there is an
international authority which rightly sits above sovereign
states and judges them.
And I say in principle that is wrong. And since I mentioned
the Declaration of Independence, let me end by appealing to the
Declaration of Independence, which in the opening sentence,
refers to the United States taking a ``separate and equal
station among the powers of the Earth.'' That has it right. It
invokes the ``separate and equal station among the powers of
the Earth to which the laws of nature and nature's God
entitle'' us.
As a sovereign state, there is no other state, there is no
other power on Earth, which is above us. God is above us, as
above all other states. And that is very important. To set up
an international authority that is higher than our own
Government really is, I think, and surely the Founding
generation would have said, that is almost blasphemous.
It is putting international authority in the place of God.
The international tribunal will be the judge of the rectitude
of nations. I say, no. That is not the Earth that we live on.
And it is not the Earth that we should want to live on.
There should not be anything higher than the United States,
even if you could assure us that, really, it has all been
fixed, and it will not do anything to harm us. The principle is
a bad one. And I am sure it will have bad consequences, because
it promotes a certain way of thinking, which is, to use an old-
fashioned term, subversive. It is literally subversive of our
constitutional order.
It is saying our Constitution is just sort of provisional.
And if we want to, we are free, without amending the
Constitution, to place something on top of the Constitution
that has higher authority. And I think the answer to that has
to be no, no, a thousand times no. And I think that is what
your bill is trying to say, and good luck to you in sending
this answer to the rest of the world.
The Chairman. Thank you.
I feel like clapping, too.
I have presided over literally hundreds of committee
meetings. And, Cap, I am going to be honest: I think this is
the most interesting one I have ever presided over.
And I am so grateful to all three of you. Just do me a
favor, when you get questions from Senators who are not here,
please respond to them, because I want to generate as much
interest and as much conversation as we can on this subject.
Thank you for coming, and thank you for being delightful
witnesses. And if there be no further business to come before
the committee, we stand in recess.
[Whereupon, at 4:55 p.m., the hearing was concluded.]
----------
Additional Statement Submitted for the Record
Prepared Statement of the Lawyers Committee for Human Rights
I. A STRONG AND INDEPENDENT INTERNATIONAL CRIMINAL COURT SERVES
IMPORTANT NATIONAL INTERESTS OF THE UNITED STATES
At the end of World War II, with much of Europe in ashes, some
allied leaders urged that the leaders of the defeated Third Reich be
summarily executed. The United States disagreed. U.S. leaders insisted
that a larger and more valuable contribution to the peace could be made
if the Nazis were individually charged and tried for violations of
international law. The International Criminal Court is an expression,
in institutional form, of an aspiration for justice with which the
United States had been deeply identified ever since World War II. It
was created to advance objectives that are totally consistent with the
long-term U.S. national interest in a peaceful, stable, democratic and
integrated global system. And the Rome Treaty, in its final form,
promised to advance that interest in the following ways:
First, the treaty embodies deeply held American values. The
establishment of the Court responds to the moral imperative of
halting crimes that are an offense to our common humanity. The
ICC promises to promote respect for human rights; advance the
rule of law around the world, both domestically and
internationally; reinforce the independence and effectiveness
of national courts; and uphold the principle of equal
accountability to international norms.
Second, the ICC will help to deter future gross violations.
It will not halt them completely, of course. But over time, its
proceedings will cause prospective violators to think twice
about the likelihood that they will face prosecution. This
deterrent effect is already apparent in the former Yugoslavia.
Even though leading architects of ethnic cleansing, such as
Radovan Karadzic and Ratko Mladic, have not been brought to
trial, their indictment has limited their ability to act and
has allowed more moderate political forces to emerge, reducing
the risk to U.S. and other international peacekeepers still in
Bosnia.
Third, through this deterrent effect the ICC will contribute
to a more stable and peaceful international order, and thus
directly advance U.S. security interests. This is already true
of the Yugoslav Tribunal, but it will be much more true of the
ICC, because of its broader jurisdiction, its ability to
respond to Security Council referrals, and the perception of
its impartiality. The Court will promote the U.S. interest in
the preventing regional conflicts that sap diplomatic energies
and drain resources in the form of humanitarian relief and
peacekeeping operations. Massive human rights violations almost
always have larger ramifications in terms of international
security and stability. These include widening armed conflict,
refugee flows, international arms and drug trafficking, and
other forms of organized crime, all of which involve both
direct and indirect costs for the United States.
Fourth, the ICC will reaffirm the importance of
international law, including those laws that protect Americans
overseas. For many people in the United States, ``international
law'' is seen either as a utopian abstraction, or an unwelcome
intrusion into our sovereign affairs. But as Abram Chayes,
former Department of State Legal Adviser, remarked shortly
before his death earlier this year, there is nothing utopian
about international law in today's world. On the contrary, it
is a matter of ``hard-headed realism.'' Many nations who voted
for the Rome Treaty had similar misgivings about its potential
impact on their sovereignty. But they recognized that this kind
of trade-off is the necessary price of securing a rule-based
international order in the 21st century. France, for example,
which participates extensively in international peacekeeping
operations, made this calculation, joined the consensus in Rome
and last week ratified the treaty. The United States, likewise,
should see the ICC as an integral part of an expanding
international legal framework that also includes rules to
stimulate and regulate the global economy, protect the
environment, control the proliferation of weapons of mass
destruction, and curb international criminal activity. The
United States has long been a leading exponent, and will be a
prime beneficiary, of this growing international system of
cooperation.
II. THE RISKS POSED BY THE ICC TO U.S. SERVICEMEN AND OFFICIALS ARE
NEGLIGIBLE IN COMPARISON TO THE BENEFITS OF THE COURT TO UNITED STATES'
INTERESTS
In assessing the U.S. government's concerns, it is important to
bear in mind some basic threshold considerations about the ICC. Most
fundamentally, it will be a court of last resort. It will have a narrow
jurisdiction, and is intended to deal with only the most heinous
crimes. The ICC will step in only where states are unwilling or unable
to dispense justice. Indeed, that is its entire purpose: to ensure that
the worst criminals do not go free to create further havoc just because
their country of origin does not have a functioning legal system. The
Court was designed with situations like Rwanda and Cambodia and Sierra
Leone in mind, not to supplant sophisticated legal systems like those
of the United States. Furthermore, there are strict guidelines for the
selection of ICC judges and prosecutors, as well as a set of internal
checks and balances, that meet or exceed the highest existing
international standards. The legal professionals who staff the Court
will not waste their time in the pursuit of frivolous cases.
Second, the Court will only deal with genocide, war crimes and
crimes against humanity, all of which are subject to a jurisdiction
narrower than that available to domestic courts under international
law. It will not be concerned with allegations of isolated atrocities,
but only with the most egregious, planned and large-scale crimes.
Could a member of the U.S. armed forces face credible allegations
of crimes of this magnitude? Genocide would seem to be out of the
question. War crimes and crimes against humanity are more conceivable.
The My Lai massacre in Vietnam revealed the bitter truth that evil
knows no nationality: American soldiers can sometimes be capable of
serious crimes. If such a crime were committed today, it would appear
self-evident that the U.S. military justice system would investigate
and prosecute the perpetrators, as it did at My Lai, whether or not an
ICC existed. And if it were an isolated act, not committed in pursuit
of a systematic plan or policy, it would not meet the threshold for ICC
concern in any case.
Benign support by the United States for the ICC as a non-party to
the Treaty would reaffirm the standing U.S. commitment to uphold the
laws of war and could be offered in the knowledge that the Court would
defer to the U.S. military justice system to carry out a good faith
investigation in the unlikely event that an alleged crime by an
American was brought to its attention. The marginal risk that is
involved could then simply be treated as part of the ordinary calculus
of conducting military operations, on a par with the risk of incurring
casualties or the restraints imposed by the laws of war. The
preparation and conduct of military action is all about risk
assessment, and the marginal risk of exposure to ICC jurisdiction is
far outweighed by the benefits of the Court for U.S. foreign policy.
iii. the icc provides an opportunity for the united states to reaffirm
its leadership on the issue of international justice, which for so long
HAS BEEN A CENTRAL GOAL OF U.S. POLICY
We urge the United States to develop a long-term view of the
benefits of the ICC. Such an approach would open the door to
cooperation with the Court as a non-state party, and eventually to full
U.S. participation. This policy shift should be based on the following
five premises:
The creation of new international institutions requires
concessions from all the participants. As an international
agreement, the Rome Statute bears the marks of many concessions
to sovereign states--not least the United States. As such, the
ICC will have a twofold virtue: it will be imbued with the
flexibility of an international institution as well as with the
rigor of a domestic criminal court. The risks involved in
supporting the present ICC Treaty are more than outweighed by
the expansion of an international legal framework that is
congenial to U.S. interests and values.
The risks of U.S. exposure to ICC jurisdiction are in fact
extremely limited, as a result of the extensive safeguards that
are built into the Rome Treaty. Those safeguards are there in
large part because the United States insisted on their
inclusion. The modest risks that remain can never be fully
eliminated without compromising the core principles established
at Nuremberg and undermining the basic effectiveness of an
institution that can do much to advance U.S. interests. The
best way to minimize any residual risk is to remain engaged
with others in helping to shape the Court. The risks, in fact,
will only be aggravated if the United States decides to
withdraw from the ICC process. Joining the ICC, on the other
hand, would allow the United States to help nominate, select
and dismiss its judges and prosecutors, and so ensure that it
operates to the highest standards of professional integrity.
More broadly, the ICC's Assembly of States Parties would
provide an ideal setting for the United States to demonstrate
its leadership in the fight against impunity for the worst
criminals.
The Pentagon's views, while important, should be balanced
among other U.S. policy interests in reference to the ICC. The
U.S. military has an institutional interest in retaining the
maximum degree of flexibility in its operational decisions. But
this must be put in proper perspective by civilian authorities
as they weigh the pros and cons of the ICC. Legislators and
others who have so far remained on the sidelines of the ICC
debate will have an important part to play in helping the
Administration develop a broader approach to the ICC, one that
puts long-term stewardship of the national interest into its
proper perspective.
U.S. leadership requires working in close cooperation with
our allies around the world. It is tempting to believe that
U.S. economic and military supremacy is now so absolute that
the United States can go it alone and impose its will on the
rest of the world. But the evolution of the ICC is a reminder
that this kind of unilateralism is not possible in today's more
complex world. The United States has tried to impose its will
on the ICC negotiations, and it has failed. In its repeated
efforts to find a ``fix,'' the United States has succeeded only
in painting itself into a corner. Worse, it has disregarded one
of the cardinal rules of diplomacy, which is never to commit
all your resources to an outcome that is unattainable. Unable
to offer credible carrots, decisive sticks, or viable legal
arguments, the United States finds itself on what one scholar
has called a ``lonely legal ledge,'' able neither to advance
nor to retreat. Asking for concessions it cannot win, in a
process it can neither leave nor realistically oppose, the
United States has so far resisted coming to terms with the
limits of its ability to control the ICC process.
The costs of opposition to the Court are too high and would
significantly damage the U.S. national interest. Once the ICC
is up and running, it seems highly unlikely that the United
States would refuse to support the principle of accountability
for the worst international crimes simply because the Court was
the only viable means of upholding that principle. It is far
more likely that a future U.S. administration will see the
advantage in supporting the Court, if only as a matter of raw
political calculus. Opposition to a functioning Court would
undermine faith in a world based on justice and the rule of law
and would shake one of the foundation stones on which the
legitimacy of U.S. global leadership has rested since World War
II.
For the last half century, U.S. foreign policy has sought to
balance military strength with the nurturing of an international system
of cooperation based on democracy and the rule of law. It would be a
serious mistake to imagine that victory in the Cold War means that the
institutional part of this equation can now be abandoned, and that ad
hoc applications of force should prevail over the consistent
application of law.
Lawyers Committee for Human Rights
INTERNATIONAL CRIMINAL COURT SERIES
Pre-Trial Rights in the Rules of Procedure and Evidence
(February 1999)
Frequently Asked Questions about the International Criminal
Court (ICC) (December 1998)
The International Criminal Court: The Case for U.S. Support
(Vol. 2, No. 2) (December 1998)
Exercise of ICC Jurisdiction: The Case for Universal
Jurisdiction (May 1998)
Pre-Trial Establishing an International Criminal Court: Major
Unresolved Issues in the Draft Statute (May 1998)
Exercise of ICC Jurisdiction--The Case for Universal
Jurisdiction (May 1998)
Establishing and Financing the International Criminal Court
(March 1998)
The Accountability of an Ex Officio Prosecutor (February 1998)
Compliance with ICC Decisions (December 1997)
The International Criminal Court Trigger Mechanism and the
Need for an Independent Prosecutor (July 1997)
Crimes Within the ICC's Jurisdiction and Essential Elements of
Their Definitions (February 1997)
Fairness to Defendants at the International Criminal Court:
Proposals to Strengthen the Draft (August 1996)
Additional materials are available at www.lchr.org