The International Criminal Court —U. S. Opposition or U. S. Support?

February 9, l999, Washington, D. C.

(A program sponsored by the United Nations Association of the National Capital Area (UNA/NCA), the American Bar Association's Group on the International Criminal Court, and the D. C. League of Women Voters. Summary by UNA/NCA and the D. C. League of Women Voters).

Jonathan Dean, President of the UNA/ NCA, welcomed an audience of some 100 people, introduced Luci Murphy, President of the D.C. League of Women Voters and Edison Dick, of the American Bar Association, and expressed appreciation to Dr. Frances Simsarian whose generous donation made this and future programs on the International Criminal Court possible.

Ambassador Dean said those who look at the international system functionally see a long list of unfulfilled requirements: among them standing peacekeeping forces with their own dependable financing; a proactive Security Council that invites governments to come before it to advise, warn, or assist them in coping with armed violence, movement towards compulsory jurisdiction of the International Court of Justice, and also, of course, an International Criminal Court that will bring to justice the Hitlers, Idi Amins, Pol Pots, and Milosovics of the world. He noted the speakers were two of the most outstanding experts on the Intemational Criminal Court.

Monroe Leigh, a partner with the Washington firm of Steptoe and Johnson, Chairman of the American Bar Association Task Force on War Crimes in the former Yugoslavia, a former President of the American Society of Intemational Law and former Legal Adviser for the Department of State said that the Intemational Criminal Court, of which he is a strong proponent, is not a new idea.

Americans have always had a strong belief in courts — our Supreme Court is held in high esteem. Intemationally, there is sometimes a collision between adjudication and a diplomatic approach where accommodation to all viewpoints is sought. Thus there has been stress on nominating impartial jurists at the international level.

The idea of a World Court started in 1899 with the first Hague Conference on Inter national Peace, which was called by Czar Nicholas II. He also called the second Hague conference in 1907. Out of that came the rumblings of a process that led to the World Court. The Court did not come about then but that conference codified the so-called laws of war. Nations were not persuaded then to establish a court but there was a list of arbitrators, now seldom used, available to nations who chose to arbitrate disputes.

The Versailles Treaty, 1919, provided in article 227 that there should be a special tribunal to try the Kaiser for "a supreme offense against international morality and the sanctity of treaties" but not for war crimes. The Dutch government refused to implement it, saying that there were no such crimes under international law. Article 228 required the Germans to hand over citizens accused of war crimes by the allied armies. This was met with derision by Germany and basically failed.

Shortly after the League of Nations was established, the parties who were strong proponents of an international court were able to get together, and in 1921, established the Intemational Court of Justice. That court has jurisdiction over nations, not individuals, and has no jurisdiction of a criminal nature whatsoever.

The next important step was surely the Nuremberg trials in 1945 and the 1946 trials in Tokyo. The London charter, regarded as "victor's justice" and still controversial, provided that the allied powers could establish, by merging their separate sovereignties into one, an international tribunal at Nuremberg which would have jurisdiction to try individuals for crimes against peace, for war crimes, and crimes against humanity. Two of these three were novelties in international law. Only war crimes were well established, since the Hague Conference of 1907. The result of Nuremberg is that three accused were acquitted, seven were sentenced to prison and 12 to death by hanging.

For the first time there could be indictments for aggression and genocide. In the 50 years since Nuremberg most of the serious objections have been cured. There is an almost universal acceptance of jurisdiction over crimes of genocide.

Reaction to the situation in Bosnia led to the establishment of the Yugoslav War Crimes Tribunal, and then came the Rwanda War Crimes Tribunal. These are limited in jurisdiction and in time. Case law has evolved, however.

"Despite the fact that the U. S. voted against the text of the Rome Treaty establishing an International Criminal Court, the United States has made an enormous contribution to the development of this text.

"When the United Nations was started, it was wisely decided that there should be an International Law Commission. In 1994, it produced a very promising text which I think the U. S. might have adopted.

"That led to the General Assembly of the United Nations calling for a diplomatic conference to develop the final terms for an International Criminal Court. I'm one of those who believe that not enough time was allowed to prepare for the Rome conference. Nevertheless, they succeeded in drafting a text which I think the U. S. could safely accept.

"It is not true, as is argued, that the U. S. Constitution guarantees service personnel a right to trial by jury. There are exceptions and jury trials do not always occur under military law.

"The Yugoslav Tribunal is nearly a perfect model of procedural protections and has the due process protections that the U. S. Constitution provides, except that, on an interlocutory basis, it provides for anonymous witnesses, which provision should be abandoned.

"The people of the United States have great regard for courts and law enforcement.

"I believe there should and will be dialogue, some modification, and eventually support by the United States for an International Criminal Court."

John Washburn has had an extensive career in diplomacy and international governmental and non-govemmental organizations. He was a Director ins the Executive Office of the Secretary-General of the United Nations and a Director in its Department of Political Affairs. Currently he is Co-Chair of the Washington Working Group on the ICC, and is also Executive Vice President of the Manhattan Chapter of the UNA. He left the U. S. Foreign Service in 1987 where his last assignment was on the Policy Planning Staff where he was responsible for International Organizations and Multilateral Affairs.

Mr. Washburn stated that this educational program is very important and by name thanked the program's organizers. Mr. Leigh having provided background and context, he said he would speak of important developments in the 1990's.

After 40 years of discussion, we have a Court about to come into being, and we have the United States — not us, but our government — standing outside the Court as it now appears. We have been told there is no possibility that the U. S. government will sign the Statute as it stands. Those of us who believe in the Court must work for it, Mr. Washburn said.

"Let me give you a sense of what these negotiations were like. They occurred between 1994 and 1998. There were three phases: An ad hoc committee had a quick look at the text from the International Law Commission and reported to the General Assembly that it was negotiable; a preparatory committee met in 1996, 1997 and 1998 and actually did most of the work to get this text — it became an almost new text — in a form that was just barely negotiable at Rome; and then in five weeks at Rome those who looked at this phone book-sized, much disagreed document were actually able to negotiate it into a Statute.

"What happened in Rome is something the U. S. had extreme difficulty with. It was international legislation conducted by multilateral parliamentary diplomacy. Our government had extreme difficulty dealing bureaucratically with policymaking in which nations -- one nation, one vote -- constituted themselves an ad hoc parliament for one particular purpose. This was very much like the passage of a complex bill through Congress. You don't have everybody sit down in the well of the Senate and do it together. It is broken down into small groups and committees. Different groups negotiate, and it all comes together in the end. Yet, the U. S. complained that the procedure, which I think could not have been otherwise, was unfair.

"Turning to the political nature of the negotiations in Rome, the preparatory process beginning with the ad hoc committee, had seen the integration and development of a group of countries into a caucus to push a particular vision of the Court. I was pleased to see on the guest list for this program today representatives of embassies of some nations that were among leaders of that group.

"The group began with countries in Northern Europe, Latin America, a few in Asia, and a few in Africa. By the time we got to the Rome meeting there were some sixty like-minded countries sharing a vision for the Court. Their purpose was to move from sixty to 120 and they did. They did that by a process amply familiar to us in Congressional procedures. You start with the ideal bill you want. You have a salami. You give away slices of the salami to get votes. You keep watching to see that you have enough of the salami left to make the process worth while at the end. They had to give away a great deal — concessions to other countries whose votes they needed, especially to France, and a wide range of concessions to the U. S. for which they received almost nothing. The key moment was when a concession had to be made to France, the opt-out provision on war crimes described by Mr. Leigh. When that concession was made, France joined the European Union then was completed the like-minded group. We're now speaking of a very dramatic moment in the middle of the last week.

"Waverers then joined the like-minded group which grew to 120, crowning the achievement. Clearly, it was no coincidence that 1998 was the year of the Euro and the year in which the Europeans became determined that there would never be another Dayton. This in turn goes into a difference in psychology between the members of the like-minded group as the final majority, and the United States.

The historical experience of most countries in the 20th century has had to do with criminal leaders and criminal occupying forces."

"I'm now about to say some tough things about the U. S. positions and to offer two caveats.

One is that since my affiliation has been mentioned, that I speak only for myself. The other is that the criticisms I make are not directed at any individuals, and particularly not our delegations in New York and Rome.

"The U. S. began with a fairly open position. It talked about problems it had with the relations between the Court and the Security Council. It talked about concern with the possible political harassment of U. S. leaders and of ordinary service people. It talked about constraints on responsibilities which the U. S. has as a super power. In the beginning these were expressed in fairly general terms.

"In New York, the U. S. position became closed. The military fears fears political harassment of senior and enlisted personnel. The U. S. moved toward a position in which it would not accept any chance that a U. S. military or senior leader could ever be tried by the Court under any circumstance without U. S. consent. Such a restriction would represent no gain for other countries. It was not worth the effort of 46 years of refinement and discussion and those five crowning weeks in Rome.

"The future? We have a court that is widely accepted with 76 signatures, there is one ratification already in hand, and sixty are needed. My personal guess is that the necessary number of ratifications will be obtained by the end of the year 2001 or the beginning of 2002. Our work politically must use this time.

"The U. S. almost decided not to participate in the next preparatory meeting, but the military is strongly interested in the definitions of crimes.

"This work is going to happen. The international pressures by countries who are committed and by the powerful international non-governmental movement will proceed.

"As Mr. Leigh pointed out, despite the current opposition of our government, the progress that has been achieved is partly an American creation. We can be proud of the way our values have contributed.

"We need now to commit ourselves to see that this work which we have brought to the brink of creation functions and is a tribute to us all!"