International court: why Clinton should reconsider.

In July 1998, a treaty establishing a permanent international criminal court (ICC) was tentatively approved by some 120 counties after an extensive period of negotiations in Rome. The new court will have powers to indict and try individuals guilty of participating in genocide, crimes against humanity, and war crimes. The creation of such a court was seen by most countries as a logical continuation of the precedent first established at the Nuremberg trials, and more recently by the ad hoc UN tribunals set up to deal with atrocities committed in the former Yugoslavia and in Rwanda.

The treaty will formally enter into force after sixty countries deposit their official ratifications of the document with the United Nations in New York. Seven countries expressed their opposition at Rome to the new court, among them Libya, Algeria, China, and - most notably - the United States. The court will be based in the Hague, and will have eighteen judges from an equal number of countries, each appointed for a nine-year term. The ICC will also have a full-time prosecutor with authority to initiate cases on his own, although the UN Security Council and individual countries will also have the right to suggest possible prosecutions. It was agreed at Rome that the court would have no retroactive authority, but would concern itself only with cases that developed after its coming into being.

The ICC will have an investigatory branch, as well as a separate appellate court to hear appeals of its verdicts. Many standard judicial protections are included in the Rome statute (for example, those having to do with double jeopardy). The maximum penalty that the ICC will be able to levy is life imprisonment, to be served in the prison system of any of several countries signifying in advance that they are willing to incarcerate those so convicted.

The Clinton administration explained its negative vote on the ICC largely in terms of its fear that American military personnel serving overseas on peacekeeping missions might be dragged before the ICC on trumped-up charges of war crimes presented by an ideologically biased prosecutor. As State Department spokesman James Rubin put it, the Rome statute was "a rush to judgment that does not adequately reflect the important role that America and our armed forces play around the world."

However, even a cursory review of the ICC's proposed structure suggests that the stated rationale for Washington's rejection of the document was a peculiar and rather unconvincing one. The Rome treaty actually allows a member country to deny ICC jurisdiction over its nationals in war-crimes cases for a period of seven years. Moreover, article 8 of the statute defines "war crimes" as being actions "committed as a part of a plan or policy" or as part of a "widespread or systematic attack directed against any civilian population." This clearly suggests that isolated (and unauthorized) individual transgressions are unlikely to be part of the court's agenda.

In any event, it is hard to imagine that the United States would have much to fear from a prosecution being undertaken of its soldiers because of a "plan" for large-scale commission of war crimes on the part of the United States. Equally important, the Rome document establishes the principle of "complementarity," which means that the court can take action only if the suspect's own country, through its regular judicial system, has failed to address accusations of misconduct. Finally, the UN Security Council (of which the United States is a permanent member) can, on its own authority, prevent the ICC from taking action against the armed forces of any country involved in an officially approved UN peacekeeping mission.

How to account, then, for the negative American stance in Rome, given that the actual provisions of the ICC statute seemed to present relatively little threat to American servicemen? The answer evidently lies in President Bill Clinton's cautious calculation of the strength of opposition forces in Washington to U.S. participation in the ICC. Senator Jesse Helms (R-N.C.), chairman of the Senate Foreign Relations Committee, for example, stated that "he was unalterably posed to the creation of a permanent UN criminal court," and that any treaty establishing such a court would be "dead on arrival" in the Senate unless Washington wielded veto power over it. The subtext of Helms's opposition to the Rome statute - shared by other opponents of the treaty - was his belief that no U.S. citizen should ever be forced to answer before an international forum about alleged human-rights abuses.

It is only fair to acknowledge that there are some troubling aspects of the ICC statute that emerged in Rome. For example, the agreement makes the ICC itself the final arbiter of disputes having to do with its "judicial functions," a standard that potentially at least is open to abuse. Furthermore, the ICC combines within a single institution the various functions of the judicial process (fact finding, prosecution, judgment, sentencing, appeal, and pardon) that in the United States are divided as a protection against arbitrary judgment.

Especially bothersome to adherents of traditional international legal principles is the provision that gives the ICC authority over citizens of states that do not ratify the treaty. It has been a fundamental of international law that states and, by derivation, their citizenry, become subject to an international standard only when they voluntarily adhere to a treaty establishing such a standard, or when the common practice of states over a long period of time can be said to have converted the norm involved into a "customary" rule of international law. The workings of the ICC as agreed to at Rome would clearly turn this principle on its head. A last-minute attempt by the United States - as well as Sudan, Indonesia, China, and Turkey - to exempt citizens of nonratifying states was defeated by a vote of 115 to 17.

Despite the questions that remain about the functioning of the ICC, it is a self-evident principle of politics that if one refuses to participate in the shaping of policy, one loses the chance to influence the character of that policy. To date, seventy-five countries have formally signed the treaty, and although the process of achieving full ratification is likely to take several years, it seems unmistakable that the ICC is an idea whose time has come. There is still an opportunity for the United States to sign the ICC treaty, and then to condition actual Senate ratification on appropriate changes in its terms. To be sure, getting the Senate to approve such action would hardly be a sure thing, particularly given President Clinton's political weakness. However, if the administration now signs the ICC statute, it will have associated the United States with the overwhelming majority of nations on a critical human-rights issue. If ratification of the statute should eventually fail, the onus of U.S. nonparticipation in the ICC would properly fall on obstructionist and isolationist forces in Congress. On the other hand, for the United States not to participate in the debate over the ICC raises basic questions about the willingness - and capacity - of the United States to take an appropriate role in moving international law toward a higher standard in protecting against human-rights abuses.

Stephen A. Garrett is professor of international policy studies at the Monterey Institute of International Studies, Monterey, California.