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.
The Pinochet precedent thus invites every country in the world to put on trial any official of any state it can get its hands on. The establishment of a permanent international criminal tribunal will only add new credibility to such ventures. The very preamble of the Rome statute admonishes that it is "the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes." And the treaty does not limit this admonition to countries trying their own nationals. So the ICC could build up an influential body of precedents and then leave it to activist prosecutors in national courts to get around any technical restrictions on the ICC's own reach.
On the other hand, the world would lose almost nothing of real value if the ICC were crippled at birth. Advocates of this proposal constantly talk about the need to bring outlaws like Saddam Hussein to justice. But before you can try Saddam Hussein, you have to arrest him. Whether the Bush administration was right or wrong to leave Saddam safely in power in Baghdad, the absence of an international court was surely not one of the major factors in this decision. There is at present a special international tribunal for Yugoslavia which actually did issue an indictment of Milosevic. It doesn't seem to have persuaded him to turn himself in nor persuaded NATO to go fetch him.
The Yugoslav tribunal was established by the Security Council in 1994 at the initiative of the U.S. ambassador to the U.N. -- none other than Madeleine Albright. It was a classic Clinton-era policy straddle. We couldn't decide whether to commit serious force to protect civilians in Bosnia, so we established a war crimes tribunal to show our seriousness. Of course, it showed the opposite. In Rwanda, the Clinton administration was very clear that it did not want any U.N. forces getting tangled up in the upheaval that began in 1994. So the world sat on its hands while the Hutu government perpetrated the slaughter of nearly a million Tutsi civilians -- from infants to grandmothers, most of them hacked to death with the most primitive weapons. Afterwards, to show how concerned we were about this flagrant disregard for the international convention against genocide, we sent in . . . lawyers, with a mandate to establish a second ad hoc international tribunal.
The Rome statute was an effort to regularize and institutionalize these Clinton-sponsored ventures in international justice. But the ICC has no police, let alone an army. It will have to depend on the cooperation of governments. How much will it get? Certainly, we shouldn't expect any country to arrest a bloodstained official from China or any other power that might have the means and the disposition to strike back. But we can't expect the most murderous regimes to offer up indicted defendants of their own accord, either. At best, we can expect the ICC to preside over a handful of carefully arranged . . . well, show trials.
But isn't this at least a valuable symbol of the world's concern? As a matter of fact, the symbolism may be the very worst aspect of the ICC. At the heart of the ICC statute is an independent prosecutor, accountable to no one. He is empowered to do justice as he sees it. If he thinks a local trial in national courts has been inadequate, he is authorized to indict a human rights abuser and demand a new international trial. If he thinks a local pardon or amnesty was improper, he can ignore it. What this authority "symbolizes" is the theory that all nations, including constitutional democracies, should surrender their most sensitive internal decisions about justice and order to ultimate international control.
The real question is not whether the Clinton team can still negotiate a technical fix for this "symbol" in order to safeguard American servicemen. The question is why this administration ever wanted to launch such a spore of world government into the unpredictable cross-winds of contemporary international politics. Secretary of State Albright has said we will be "a good neighbor to the ICC," even if we can't join it. We ought to be trying to stop it from taking root. Senator Helms and his Republican co-sponsors have made a good start.
Jeremy Rabkin teaches constitutional law and international law at Cornell University. He recently testified on this topic before the Senate Foreign Relations Committee.