The United States delegation had just lost a crucial vote at the United Nations conference on an International Criminal Court (ICC), and to many ears the applause in the Rome conference room quickly took on a bitter edge. The American diplomats in the room sat quietly as the cheers rained down. Human rights activists continued cheering for long moments after other diplomats - perhaps sensing the awkwardness of the moment - stopped.
Later that evening, when the draft statute for the court was approved by a vote of 120 to 7, the U.S. isolation became even more stark. The United States'sfew partners in opposition were almost all states traditionally on the receiving end of American broadsides for their disregard of human rights: Libya, China, Algeria, and Yemen. The sole U.S. ally opposed to the treaty was Israel (Qatar accounted for the final negative vote). When UN Secretary General Kofi Annan grandly brought the gavel down on the conference at a signing ceremony a few days later, the U.S. delegation was nowhere to be seen.
The irony was complete. The country that had been the driving force behind not only the Nuremberg trials but also the recent tribunals for the former Yugoslavia and Rwanda had become the most powerful opponent of a court intended to fulfill the promises of those earlier initiatives. To many mainstream internationalists, the U.S. position was difficult to understand. The Washington Post called the Rome conference a "diplomatic trainwreck"; the New York Times labeled the administration's performance "shameful."
Historically ironic as it was, though, the outcome of the conference was hardly unpredictable. U.S. opposition to key provisions of the emerging statute, first drafted in 1994, had been known long in advance. In April of this year, Senator Jesse Helms, chairman of the Senate Foreign Relations Committee, growled that a court with jurisdiction over any American citizens would be "dead on arrival." The Pentagon, too, had lined up against a strong international court. In March, Pentagon lawyers took the unusual step of calling together dozens of foreign defense attachés to sound the alarm. In a three-page briefing paper the Pentagon warned of the dangers of politically motivated prosecutions and implored its counterparts to "take an active interest in the negotiations regarding an international criminal court."
The U.S. delegation that headed to Rome in June for the final conference carried with it the knowledge that the draft statute needed fundamental revision to pass muster at home. Particularly sensitive topics included plans to give the court an independent prosecutor and universal jurisdiction. To critics in the U.S., these were the raw material for a court that might seek out American soldiers and policymakers as targets for politically motivated investigations. The court that the U.S. could support would be far more limited: the UN Security Council would have control over which cases were prosecuted; states could reject the court's jurisdiction; and the scope of crimes that fell within the court's jurisdiction would be conservatively defined.
During the six-week conference, the American delegation fought pitched battles to squeeze the court into a size it could swallow. And the Americans were not always subtle: U.S. diplomats let allies know that their votes might reduce America's willingness to join in future peacekeeping missions or keep troops stationed abroad.
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As the conference progressed, frustration with the perceived U.S. bullying mounted. In a thinly veiled reference to the United States, Canadian Foreign Minister Lloyd Axworthy warned that "we must not allow those who are wedded to an outmoded worldview to delay us in this task." Emma Bonino, the European Union's outspoken humanitarian affairs commissioner, called the United States and other opposed states "a strange coalition of bad losers." The New York–based organization Human Rights Watch sent out a public appeal re questing that other delegations stand by the principles of the conference and "not capitulate to threats of sabotage by the United States."
Escalating rhetoric aside, the American delegation still clung to the belief that the world would not go ahead without them. According to Michael Posner, executive director of the Lawyers Committee for Human Rights, the U.S. delegation "got to Rome and assumed that everybody would want the U.S. in so much that they would alter the treaty." In the end, the states most supportive of the court - they dubbed themselves the "like-minded group" - were willing to leave the world's only superpower behind. And the raucous applause that greeted the defeat of the last, desperate U.S. amendment showed that many delegations actually took some pleasure in doing so.
Roads to Rome
The uneven path that eventually led to the Rome conference and the adoption of the ICC statute began at Nuremberg in 1945. One of the first acts of the United Nations had been to make genocide a universally punishable international crime. Plans for a permanent criminal court were put in place in 1950. But the effort soon ran aground on the shoals of Cold War hostility.
It took the end of the Cold War and a spate of brutal ethnic wars, which horrified and embarrassed the international community, to retrieve these moribund plans from the thicket of UN officialdom. As reports of atrocities and concentration camps streamed out of Bosnia, the West looked on helplessly and found that its own half measures left it partly complicit in the violence. Genuine moral outrage was stymied by a stubborn unwillingness to take the political and military risks needed to end the carnage.
Largely at Washington's be hest, however, a skeletal mechanism for investigating and punishing crimes committed in the former Yugoslavia slowly emerged. The UN Security Council first authorized a commission of experts to collect facts on the atrocities and then, in February 1993, a tribunal to punish those responsible. Madeleine Al bright, then the U.S. ambassador to the UN, praised the vote with words that now seem painfully ironic. "There is an echo in this chamber today," she told the council. "The Nuremberg principles have been reaffirmed. The lesson that we are all accountable to international law may finally have taken hold in our collective memory."
The world did not have to wait long for another test of its newfound commitment to justice. Genocidal violence left half a million dead in Rwanda in April 1994. But again, the international community lacked the political will to halt the genocide. In the early days of the massacres, the Security Council actually scaled down its peacekeeping force in the country. Once again, the U.S. pushed through the council an ad hoc international tribunal to punish those guilty of genocide.
Dismissed by many as fig leaves for inaction, the Yugoslavia and Rwanda tribunals have borne surprising results. Almost half of those publicly indicted by the International Criminal Tribunal for the former Yugoslavia now reside in prison cells in The Hague. The NATO-led peacekeeping force in Bosnia has abandoned its early timidity and now hunts down indicted war criminals (though not yet the most prominent) with some regularity. The Rwanda tribunal, though plagued by early administrative negligence, has 30 individuals in custody - several from the highest ranks of the government that unleashed the genocide - and recently handed down a life sentence to ex-Rwandan Prime Minister Jean Kambanda for his key role in the April 1994 massacres.
Still, the lasting peace that international justice was to cement in Bosnia and Rwanda remains elusive. More than two years into the Dayton Accords, ethnic partition is still the reality in Bosnia, and Rwanda is victim to continued massacres (as well as dangerous tensions with the neighboring Democratic Republic of Congo). Both examples have tempered the early optimism that international trials could rapidly settle the wrongs left in the wake of vicious warfare.
Nor is it clear that a permanent court would have any more success than the ad hoc tribunals. In fact the obstacles it would face would likely be even greater. The Yugoslavia tribunal has had a de facto enforcement arm in the NATO troops stationed in Bosnia - something the ICC will almost certainly lack. A prosecution bereft of the superpower support that gave life to the Bosnia and Rwanda tribunals could do little more than impotently indict wrongdoers residing safely beyond its reach.
The court's shortcomings cannot be obscured by the hyperbole of some of its supporters. One advocate greeted the statute's adoption by calling it "one of the greatest victories for peace in the last 100 years." But surely this misreads recent history. Western armies, not international courts, stopped the Bosnian war. Likewise, French force (belated and ambiguous in its intent, to be sure) put an end to the 1994 massacres in Rwanda. For the foreseeable future the intervention of powerful states will stand as the real bulwark against genocide and crimes against humanity.
But if the past is any guide, great powers will frequently fail to fulfill this vital role, and that wall will be breached with some regularity. The court could become a pillar of humanity's second line of defense. The court could anathematize tyrants, warlords, and generals who might otherwise maintain a veneer of respectability. Public indictments would serve as a needed reminder to world politicians who might otherwise too readily forgive and forget. Domestic opponents of criminal regimes, in turn, might use indictments to their advantage (though in particularly revanchist societies, indictment might have the opposite effect). Most importantly, a permanent court ensures that the machinery of justice will be ready at hand, free from the substantial delays and inefficiencies that hampered the early work of the Bosnia and Rwanda tribunals. In time, the court may even achieve the deterrent effect that its advocates have so loudly trumpeted.
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For conservative opponents of the court like John Bolton, an assistant secretary of state in the Bush administration, the notion of an international court deterring mass atrocity is laughable: "The ICC's advocates make a fundamental error in trying to transform matters of power and force into matters of law. . . . [W]hy we should believe that bewigged judges in The Hague will prevent what cold steel has failed to prevent remains entirely unexplained."
In Bolton's suspicious eyes, the court - so meek in facing down small-time dictators and thugs - assumes threatening proportions when facing the world's only superpower: "Our main concern should be for the president, the Cabinet officers who comprise the National Security Council, and other senior civilian and military leaders responsible for our defense and foreign policy. They are the real potential targets of the politically unaccountable prosecutor created in Rome."
What Bolton and others fear is that the court would classify a unilateral U.S. military operation - such as the forays into Grenada, Libya, or Panama - as an act of aggression or a crime against humanity. And to be sure, there are those who might want to use the court for this purpose: the ink was barely dry on the ICC statute when Syria called on the nascent court to try Israel for its settlement policies.
But the court is, at its heart, the creation of America's allies and the product of the principles the United States itself championed at Nuremberg. In fact, thanks to the substantial changes won by the U.S. delegation at Rome, the court is actually quite narrowly tailored. Article 18 of the statute obliges the court to allow national courts to pursue war crimes prosecutions before asserting its own jurisdiction; the court can only act when a pattern of war crimes is present (this to assuage Pentagon fears that an American GI might be brought up on charges for an isolated act); and the Security Council can both initiate and delay proceedings. In the words of Michael Scharf, professor at the New England School of Law, the U.S. delegation "played hardball in Rome and got just about everything it wanted."
What the United States was unable to prevent - a prosecutor that need not rely on a state's consent to investigate crimes - is precisely what gives the court its bite. Had the U.S. attained its demand that the state of the accused must consent to jurisdiction, the court would have been rendered powerless to prosecute the vast majority of those who have committed egregious crimes. Iraq would protect Saddam Hussein, Yugoslavia would shield Slobodan Milosevic, and so on.
The Rome statute left many questions about the court's operation unanswered. The final shape and direction the court takes will depend largely on the input of those states most involved in its early years of operation - many of whom will be close U.S. allies. But rather than working to ensure that the court is properly staffed and managed, the Clinton administration seems intent on leading a quixotic campaign to prevent ratification around the world. Years from now, the U.S. may sign onto the court, but a price will have been paid. The court will suffer from America's hostility, and U.S. policymakers will eventually find that their efforts to immunize the United States from the court's judgments have deprived American diplomacy of an institution so compatible with its own foreign policy goals.
The Enemy Within
More sobering even than the U.S. opposition, though, was the glimpse that opposition gave of the mounting isolationist sentiment in American politics. The Senate hearing that followed the Rome conference was enough to send chills down the spine of any internationalist. Senator Rod Grams wasted no time turning the issue into another battle in America's war against "foreign entanglements." In his opening statement, Grams reached back through history to sucker-punch internationalist efforts of yesteryear: "I hope that now the Administration will actively oppose this Court to make sure that it shares the same fate as the League of Nations - and collapses without U.S. support. For this Court truly is a monster, and it is a monster that must be slain." Not to be outdone by his protégé, Senator Jesse Helms called on the administration to "close the casket" on the ICC.
Few in Congress appear ready to stop the undertakers. At the Senate hearing, those who might have provided some perspective (like Senators Dianne Feinstein and Joseph Biden) did little more than mimic the Helms line. Even those, like Senator Joseph Lieberman, who have taken strong positions in favor of war crimes prosecutions have been silent on the ICC. Michael Posner concedes that human rights groups "have not done enough to build a constituency. Nobody [on the Hill] is clamoring for this."
The U.S. position on the court is in part a result of the Clinton administration's unwillingness to challenge the combined forces of the Pentagon and the Helms clique, both of which are indispensable to maintaining America's controversial commitments abroad. But there's something more fundamental at work: a generation-long American disenchantment with international institutions and universally applicable human rights law. For many opponents of the ICC, the Rome conference was one more example of the United States pitted against a hostile foreign crowd. In the cheering that greeted the U.S. defeat, the Weekly Standard's David Frum saw a replay of the "worst U.N. excesses of the 1970s."
To the court's opponents, America's stance at Rome was one of principled defiance. But it really demonstrated how much the United States has lost confidence in its ability to lead and shape international institutions. Fear, not reason, accounts for the U.S. position. Professor Diane Orentlicher of American University argues that the United States "seemed driven by an assumption that everything that theoretically could go wrong with the court would go fantastically wrong." That's an assumption fraught with dangers. For unless such thinking is defeated it will lead the U.S. away from the international institutions, laws, and norms that are the bedrock of a liberal international order.
The court's critics argue that the ICC will undermine the pursuit of international justice by making the UnitedStates more reluctant to undertake humanitarian interventions. But it is a far greater danger to American global engagement for the U.S. to believe that a court punishing crimes against humanity is a menace to its interests.
