Crimes of War

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 Dodd’s 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 Helm’s 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 Helm’s 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 Court’s 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 court’s 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 Washington’s objections and taken great pains to address them. For example, they point out that the ICC’s 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.

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