March
6, 2002
American
Opposition to the International Criminal Court
A few
days after Christmas 2001, the U.S. Congress came within a hair's
breadth of passing a law that would have permanently banned U.S.
participation in the nascent International Criminal Court
an institution that most countries view as a landmark in international
cooperation and possibly the greatest step towards multilateral
justice since the Nuremberg tribunals. Although the anti-ICC bill
was narrowly defeated, U.S. opposition to the Court remains fierce
and legal experts and government officials expect it to pass sometime
this year.
The
story of this legislation's near passage was widely reported in
Europe, where almost every government strongly backs the ICC and
has already ratified its charter. Articles appeared throughout the
fall in most major European papers, including Le Monde Diplomatique
and El Pais, roundly condemning the bill. In October, the
New Statesman called the bill a signal that "the U.S.
does not regard itself as an equal partner to its allies,"
and Spanish, Finnish, and Dutch government officials also condemned
it in print. Germany's Foreign Minister, Joschka Fischer, even sent
an October 30 letter to Colin Powell warning that "adopting
the [legislation] would open a rift between the U.S. and the European
Union on this important issue." Belgium's foreign minister,
Louis Michel, sent a similar note on behalf of the entire European
Union.
But
while the anti-ICC legislation received intense scrutiny overseas,
the act, which could have major implications for the United States,
got almost no coverage in the American press. So what happened in
the U.S. Congress in the last days of 2001, and why are U.S. politicians
so wary of the Court?
In
early December 2001, in an eleventh-hour vote, the Senate first
adopted a version of the controversial bill, known as the American
Servicemembers' Protection Act (ASPA). Originally proposed in June
of 2000 by Senator Jesse Helms (R-N.C.), the ASPA was reintroduced
onto the Senate floor late on Friday, December 7 as an amendment
to the Department of Defense appropriations bill.
The
Helms rider included several striking provisions. It prohibited
U.S. cooperation with the ICC, even though the United States had
already signed (but not ratified) the court's founding treaty. The
bill also blocked U.S. involvement in U.N. peacekeeping missions
unless the United Nations first exempted American troops from prosecution
by the new court. It outlawed the provision of U.S. military aid
to non-NATO countries that had ratified the ICC treaty (although,
under intense pressure from the White House, language was added
at the last minute to let the president waive this restriction).
Finally, and most dramatically, the Helms amendment authorized the
president to use force to free American servicemembers or their
colleagues if they were ever brought before the tribunal. This last
provision earned the bill the nickname "the Hague Invasion
Act" (since the new ICC will be located in the Netherlands).
When
put to a quick vote late on that Friday afternoon, Helms' ASPA passed
the Senate by an overwhelming 78-21, despite its controversial content.
Only a few senators (Joseph Biden (D-Del.), Christopher Dodd (D-Conn.),
Patrick Leahy (D-VT), Carl Levin (D-Mich.), Arlen Specter (R-Penn.),
and Paul Wellstone (D-Minn.) stood up to oppose it from the floor.
Biden warned that to block U.S. participation in the ICC at the
same time that Washington was pushing for justice for Osama bin
Laden, former Yugoslav president Slobodan Milosevic, and others
would "send silly signals to the world." Leahy concurred,
cautioning that the ASPA would "damage the cause of international
justice." Specter, the only Republican to speak out against
the legislation, argued that the best way for Washington to improve
the ICC was by working with it, not opposing it. Despite these warnings,
many moderates and even liberal Democrats including Senators
Chuck Schumer and Hillary Clinton of New York ended up voting
for Helms' provision without comment. (Neither Schumer or Clinton
responded to repeated requests to discuss their votes).
Lopsided
as the ultimate tally was, advocates of the ICC who followed the
vote in December claim that the Senate's ultimate passage of Helm's
ASPA should not be seen as a referendum on the international court.
A more revealing vote, they say, had taken place earlier that same
day, when, using a procedural mechanism, Senator Dodd tried to derail
the Helms bill. Known as a "punt" amendment, Dodd's tactic
(introduced as a "second-degree amendment," or an amendment
to Helms' amendment) would have stalled Helms' ASPA indefinitely
by sending it to the president for his advice on whether such a
measure was necessary. As Dodd explained, while he himself had some
concerns about the ICC, he felt that Helms' amendment was not "in
the best interest of our country or our individual men and women
in uniform."
Specifically,
Dodd took issue with the way Helms' legislation would have blocked
the United States from even negotiating with the ICC. "My concern,"
said Dodd, "is that if Senator Helms' amendment passe[d], this
treaty may go forward and we will have no say in the [ICC negotiation]
process." Instead, he argued, "the United States should
remain engaged in trying to fashion this Court in a way that would
protect our men and women in uniform. That way at least we maximize
the possibility that this Court is going to do what we would like
it to." By keeping Washington from holding discussions with
the ICC, Dodd warned, Helms' legislation could well "prohibit
a future Nuremberg [prosecution]."
The
vote on Dodd's blocking amendment was close, but it was ultimately
defeated by a margin of 51-48. As Heather Hamilton, Director of
Programs at the World Federalist Association explains, the fact
that Dodd's attempt to freeze the Helms bill very nearly succeeded
shows how much discomfort there was with the ASPA. However, when
Dodds blocking amendment failed, even those senators who favored
U.S. participation in the ICC realized that they could not defeat
Helms' amendment and decided to go along with it and Helms
anti-ICC bill sailed through the Senate.
Part
of the reason pro-ICC senators approved the bill may have to do
with the mood in the United States following the terrorist attacks
of September 11. Once it became clear that the Helms amendment was
going to pass, "Democrats didn't want to be slammed for being
anti-servicemembers," said Hamilton. As William Pace, Convener
of the Coalition on the International Criminal Court (a broad-based
group of NGOs that work on behalf of the ICC) put it, "Politicians
did not want to be on the record opposing something called the 'American
Servicemembers Protection Act,' especially with the 2002 elections
approaching."
The
Senate vote, however, did not clear for the Helms amendment. ICC
supporters including both NGOs and European governments
intensely lobbied the U.S. Congress and Senators Daniel Inouye (D-HI)
and Leahy, reportedly fought against it in conference (the actual
session occurred behind closed doors). When the Senate met with
the House of Representatives in January to reconcile their different
versions of the Defense Appropriations bill, the Helms amendment
was dropped from the final text just as unceremoniously as it was
passed. It was replaced much milder language, simply preventing
U.S. participation in the court for the year 2002. However, when
it is presented to Congress again, political analysts say it will
likely pass.
Although
Helms anti-ICC bill was controversial, opposition to the ICC
in the United States is not new. Even the Clinton administration,
which originally supported the court and helped create it
pushing hard for the creation of the ICC's forerunners, the U.N.'s
two ad hoc tribunals for Yugoslavia and Rwanda, and then taking
a lead role in the 1998 Rome conference where the ICC treaty was
drafted pulled back once the U.S. military began to object.
And after that point, Clinton's team never spent much political
capital trying to recuperate the reputation of the ICC. As a result,
today, according to Columbia Law School's Edward C. Luck, "there's
no one leading the charge [for the ICC] because it's just not good
politics. No one is committed enough to get out front, so the ground
is left to the Helmses of the world."
The
reasons U.S. politicians are so skeptical of the ICC are many fold.
Most of them are spelled out in a November 2000 open letter to Congressman
Tom DeLay, from a dozen current and former top government officials,
including three Secretaries of State, three National Security Advisers
and two CIA Chiefs (among them Henry Kissinger, Zbigniew Brzezinski,
George Schultz, and Donald Rumsfled).
Foremost
among their fears is that the Court will function (in Helms' words)
as "an unaccountable kangaroo court," prosecuting American
soldiers for peacekeeping duties abroad. In the letter, they say
that the United States needs to put "our nation's military
personnel safely beyond the reach of an unaccountable international
prosecutor operating under procedures inconsistent with our Constitution."
ICC opponents also fear that the Courts charter does not contain
adequate due-process procedures. As the government officials wrote
in the DeLay letter, "Any American prosecuted by the ICC will
be denied basic constitutional rights guaranteed them under our
Bill of Rights." Finally, those skeptical of the ICC warn that
the Court will claim jurisdiction over Americans even if Washington
does not ratify the courts treaty.
Ruth
Wedgwood, a professor of international law at Yale and Johns Hopkins
School of Advanced International studies, blasts the ICC's advocates
for not taking such American concerns seriously enough. "A
number of our major allies," Wedgwood says, "presumed
that we'd just come around eventually and stop objecting, especially
when the court comes into existence. So they stopped taking our
concerns into account. [The Senate] vote was meant to rock them
back on their heels and show them that our objections to the court
are serious."
However,
the framers of the ICC treaty say they have listened to Washingtons
objections and taken great pains to address them. For example, they
point out that the ICCs jurisdiction will only be triggered
if the country of the accused is found to be "unwilling or
unable" to prosecute a provision that was adopted specifically
to assuage American concerns. They say that even a preliminary U.S.
investigation of wrongdoing by American soldiers would satisfy this
requirement (even if no charges were ultimately brought), and that
because the United States boasts a rigorously enforced military
justice system, it is extremely unlikely that the ICC would ever
have the chance to bring charges against an American in uniform.
ICC
advocates also dispute American concerns about the lack of due process.
According to Monroe Leigh, former President of the American Society
of International Law and legal adviser to the State Department,
"[the ICC Charter] contains the most comprehensive list of
due process protections which has so far been promulgated."
They also assert that the ICC's statute sets out extensive checks
and balances to prevent any prosecutorial abuse, and that decisions
about whether or not to bring charges will be overseen by judges
and will be appealable.
As
for the assertion that the ICC treaty will bind Americans even if
Washington refuses to sign, they say it is true which is
all the more reason for the United States to be involved in the
creation. Furthermore, they point out that U.S. soldiers serving
abroad are currently subject to the jurisdiction of the country
in which they operate, unless specifically exempted by treaty.
Many
ICC proponents believe that Congress is simply ill informed about
the ICC. According to Richard Dicker, Director of the International
Justice Program at Human Rights Watch, "the level of real understanding
about the ICC is staggeringly low, and Helms and others are able
to circulate a lot of disinformation, obviously effectively."
The result, says Heather Hamilton of the United World Federalists,
is that Congress succumbed to "decision-making based on untruths
and myths."
But
Wedgewood disagrees. She says that there are still many real concerns
that have not been addressed. For example, she worries about the
undefined nature of crime of "aggression" in the ICC statute,
which was left to be resolved at a follow-up conference in seven
years.
Whether
Washington likes it or not, however, the ICC will soon be up and
running. The Court will start setting up shop in The Hague once
it is ratified by 60 countries. In late February 2002, Portugal
and Ecuador ratified the treaty, bringing the number to 52. Legal
experts predict that the treaty could garner the remaining eight
ratifications to put the Court into force before the end of the
year. In all likelihood, it will have to pursue its mandate of prosecuting
war crimes, genocide, and crimes against humanity, without any help
from one nation that historically led the charge towards international
justice.
Jonathan
D. Tepperman is a Senior Editor at Foreign Affairs magazine in New
York. He writes frequently about international law.
Related
Links
"Experts
Dispute Bush Aide's Criticism of War Crimes Panels",
By
Barbara Crossette
The New York Times, March 2, 2002
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