The Magazine


Aug 10, 1998, Vol. 3, No. 46 • By DAVID FRUM
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Article VIII lists war crimes over which the International Criminal Court will have jurisdiction. Here's one of them: "Intentionally directing attacks against civilian objects, that is, objects which are not military objectives." Question: Was Hanoi harbor a "civilian object" when President Nixon ordered it bombed in the spring of 1972? What about the presidential palace in Benghazi, Libya, which President Reagan attacked in 1986? How about the electrical and water systems of Baghdad, destroyed by the American bombing raids on Iraq in 1991? Or the camps and neighborhoods of Mogadishu into which President Clinton ordered the Marines in pursuit of Gen. Aideed? Americans will say -- rightly -- that these "objects" were in every case legitimate targets of war, and that the civilian deaths that resulted were sad but unintended. If the International Criminal Court becomes a reality, however, American opinions of American military actions will no longer be the last word. Not the Congress and the American people but a prosecutor perhaps from Bangladesh, and judges drawn (who knows?) from Ghana, Denmark, Jamaica, Ecuador, Oman, and Malaysia, will decide whether an American president has gone too far in defense of American interests.

Of course, power politics being what they are, the International Criminal Court may hesitate to strike directly at the United States. But Israel will provide a convenient proxy, as it long has in the U.N. General Assembly. The language of the Rome treaty implies that the existence of Israeli settlements in the West Bank constitutes a war crime: "The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies." The treaty further appears to declare the very existence of Israel a crime against humanity; it lists "apartheid" as a crime and then defines "apartheid" in language that U.N. agencies habitually apply to Israel.

Defenders of the treaty will say that these ominous possibilities remain hypothetical. Canadian foreign minister Lloyd Axworthy, perhaps the treaty's single most persistent promoter, says the chances that the court will ever prosecute an American serviceman are "minute." But there's little reason to accept that not very reassuring reassurance. The conferees at Rome stripped away the international procedures that have until now protected the interests of the United States from the caprices of the U.N. system, and opened the door to an alarming possibility of interference in and sabotage of America's ability to defend itself and to guarantee world peace and security.

The United States, like the four other permanent members of the Security Council, can veto important U.N. actions. But the International Criminal Court was carefully structured to deny an American veto. And as the Indian delegate to the Rome conference explained, this was done with the deliberate intention of reducing the influence of the country that through this century has paid most of the bills and shed most of the blood required to defend democracy: "The composition of the Security Council and the veto vested in five permanent members is an anomaly. This anomaly cannot be reproduced and recognized in an [International Criminal Court]. There cannot be one rule for some countries for the exercise of [the court's] jurisdiction and another rule for others."

Astonishingly, David Scheffer, the Clinton administration negotiator, at one point indicated that the United States might actually accept the stripping away of its once-cherished veto, providing only that some role was reserved for the Security Council. This was the so-called "Singapore compromise": Instead of putting in the hands of the Security Council the power to start prosecutions (which the United States could thus always veto), it would have given a majority on the Security Council the power to stop them (which would have meant that the U.S. could protect itself only if seven of its fellow Security Council members agreed). Even this compromise was too much for the governments assembled in Rome, though: They voted instead to confer on the court nearly unfettered discretion to decide whom and when to prosecute.

Almost equally intolerable for the United States, the Rome conference vitiated the principle known in U.N.-speak as "complementarity" -- the idea that democratic countries can be trusted to prosecute their own William Calleys. Instead the Rome treaty gives the International Criminal Court power to prosecute criminals even in countries with functioning legal systems if the prosecutor believes that the home country of the criminal is "unwilling to prosecute."