AUG 21, 2001
America's Interest in an International Court
By BILL RICHARDSON
The prospects for American involvement in an International Criminal Court do not, at present, look at all good. The Clinton administration signed the necessary treaty, at the end of last year, only with reluctance. No one believes the Senate will ratify the treaty Mr. Clinton signed.
Republican leaders in the House have sponsored a bill — attached to legislation freeing up money committed to paying United Nations back dues — that would seriously undermine the international court, whether or not the United States eventually ratifies. The Bush administration has expressed no enthusiasm for the court and reportedly is discussing "unsigning" the treaty. The administration has already rejected, or expressed serious reservations about, some half- dozen international agreements; the court appears to be next in line. But to pack up and leave now would send the wrong signal to the world and be a serious mistake.
American interests would be well served by an international criminal court that could help prevent the carnage that we have seen so recently in Bosnia and Rwanda. If the United States were to walk away, it would be removing itself from a process that could make the court consistent with our interests and our legacy as a champion of international justice. We have a chance to fix the remaining problems with the court — and we should take that chance.
As ambassador to the United Nations, I made American concerns quite clear at the beginning of the Rome negotiations on the International Criminal Court treaty in 1998. American involvement resulted in changes that addressed many of those concerns. For example, the treaty says the court must defer to national systems in prosecuting and judging crimes. The United States also won agreement that the court would cover only the worst international crimes — genocide, war crimes and crimes against humanity.
We helped lead successful talks on the rules of procedure and evidence and on how to describe the elements of crimes that would come under the court's jurisdiction.
Nonetheless, the treaty establishing the court has some troubling ambiguities and questions that should be resolved through amendments by ratifying countries and through periodic reviews. The opportunity to address those ambiguities is a strong reason for continuing American engagement. At present, a vaguely defined crime ("aggression") may be added to the court's jurisdiction. But the United States and its allies will at times need to use force to protect national interests and defend freedom, as was done most recently in Kosovo. The United Nations Security Council's traditional authority in this area must be accepted over that of the court.
The possibility also still exists that a prosecutor, fired by political convictions or ambitions, might try to advance a particular agenda through the court. If we stay engaged, we can participate in negotiating guidelines for prosecutors. And we can help decide how the court will determine when a national court is, in the treaty language, "unwilling or unable genuinely to carry out the investigation or prosecution."
As part of ongoing negotiations and reviews, we need to ensure that the court will respect democratically determined solutions to past crimes, like the South Africa truth commission or the terms of peace settlements that help to end civil wars. Such commissions and settlements never fully satisfy every party; the international criminal court must not be allowed to second-guess them. Finally, if it is still involved, the United States will have a crucial say in the selection of judges and prosecutors.
In the end, there will be some kind of international criminal court. It could be a good court, or a mediocre one, or genuinely dangerous. But the United States will not be able to affect the outcome if it is not involved in the process of establishing it. President Bush should delineate America's serious concerns and assert the right to press for essential changes — while he still can.
Members of Congress, led by Senator Christopher Dodd, have proposed compromise legislation recommending just that. Their bill encourages the United States to remain engaged while protecting American citizens and military people from politicized prosecution by the International Criminal Court or other foreign tribunals.
If American concerns are met and the court establishes a good track record, the president should press for Senate ratification of the treaty. If progress is not forthcoming and the court's performance is unacceptable, the United States will have plenty of opportunities to take retaliatory measures, including financial and other sanctions.
The International Criminal Court is not a panacea. The only lasting solution for genocide and other egregious crimes is the global expansion of democracy. But a permanent court, operating wisely within a treaty structure that the United States can embrace, holds the promise of adding to the world's arsenal against human rights violations. As a leader for international justice, America needs to help make that promise a reality.
Bill Richardson, chairman of Freedom House, was ambassador to the United Nations under Bill Clinton.