The Magazine

This Court Would Be Criminal

Congressional Republicans' just war on the International Criminal Court

Jun 26, 2000, Vol. 5, No. 39 • By JEREMY RABKIN
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AT UNITED NATIONS headquarters in New York last week, diplomats from around the world were trying to work out remaining details for the proposed International Criminal Court. U.S. ambassador David Scheffer tried to persuade other nations to include, among these details, some assurance that no member of a U.S. peacekeeping force would ever find himself in the dock before the ICC.

Meanwhile, at the Capitol in Washington, Republican congressional leaders had run out of patience with these negotiations. A bill submitted simultaneously in the House and the Senate last week amounted to a declaration of war on the new ICC. The bill's co-sponsors included the majority leadership in both houses and the chairmen of the relevant standing committees in both houses. Naturally, the Clinton administration complained that it was irresponsible to introduce such a proposal in the midst of delicate international negotiations. But the Republican leaders have done the country a great favor -- and the rest of the world, too.

The Statute of the International Criminal Court, drafted at a U.N. conference in Rome in the summer of 1998, would give the court broadly defined jurisdiction over perpetrators of "genocide" and "crimes against humanity" as well as "war crimes" and the crime of international "aggression." A permanent independent prosecutor would be authorized to indict any perpetrator of these crimes who is a national of a state that has ratified the Rome statute -- or any perpetrator whose victims are nationals of a ratifying state. Bowing to fierce opposition from the Pentagon, the Clinton administration announced at Rome that it could not sign the ICC charter with such open-ended provisions. U.S. negotiators have been struggling ever since to insert some mechanism that would prevent the prosecutor from reaching U.S. servicemen operating on the territory of a country that has ratified the ICC statute.

Now, it is rather late in the day to charge the Republicans with irresponsible meddling. "We have stayed out of the administration's way for two years," says Marc Thiessen, spokesman for chairman Jesse Helms of the Senate Foreign Relations Committee. "For all that time, the Europeans have simply been stringing the Clinton administration along. They are unalterably opposed to any exemptions for American servicemen. And they don't believe they need to make such concessions, because they are convinced the Clinton administration won't really oppose this treaty, in any case."

So the Republican bill takes the lead in registering American opposition. The "American Servicemen's Protection Act" would prohibit any court in the United States from cooperating with efforts to extradite anyone to the ICC and would prohibit U.S. intelligence agencies from sharing information with the ICC. More than that, it would cut off financial aid and military assistance to any country that does ratify the Rome statute (though the bill makes an exception here for "NATO allies" and other "major allies"). As an ultimate weapon, it provides advance authorization to the president to take "all appropriate measures" -- not including the payment of bribes but clearly including military measures -- to secure the release of any American held for trial by the ICC. It also authorizes this rescue service for NATO allies and other "major allies." (Israelis, in particular, may need this service.) In the absence of clear exemptions for U.S. peacekeeping forces, says Thiessen, "our aim with this bill is to isolate the ICC and then to kill it."

We should all hope they kill it. The ICC would be a pernicious institution even if some technical remedy were found to keep it away from U.S. servicemen. The Pinochet case guarantees that. The former Chilean president was arrested by British authorities less than three months after the Rome conference that launched the ICC charter. The British ultimately allowed Pinochet to return to Chile on the excuse that he was too sick to stand trial. But not before judges in the House of Lords, Britain's highest court, had confirmed that it would be legally proper for Britain to try him -- and therefore proper to extradite him to Spain, where an activist magistrate was very keen to try him -- for "torture" inflicted on Chilean nationals, on Chilean territory, by the internationally recognized government of Chile, during the period when Pinochet was head of state in that government.