Results of the
Rome Conference for an International Criminal Court
By Michael P. Scharf
August 1998
At the end of the
six-week Rome Diplomatic Conference
for an International Criminal Court,
on July 17, 1998, 120 countries (including
virtually all of the United States'
allies) voted in favor of the Treaty
containing the Statute for an International
Criminal Court. The United States
joined China, Libya, Iraq, Israel,
Qatar, and Yemen as the only seven
countries voting in opposition to
the Treaty. Twenty-one countries abstained.
On July 23, 1998, the Senate Foreign
Relations Committee held hearings
to determine why the United States
voted against the International Criminal
Court and to ascertain future U.S.
policy with respect to the Court.
The hearings began with statements
by Senator Jesse Helms (R-North Carolina),
Senator Rod Grams (R-Minnesota), Senator
Dianne Feinstein (D-California), Senator
John Aschroft (R-Missouri), and Senator
Joseph Biden (D-Delaware). These were
followed by testimony from David Scheffer,
Ambassador-at-Large For War Crimes
Issues; John Bolton, Senior Vice President
of the American Enterprise Institute;
Attorney Lee Casey; and Professor
Michael Scharf (the author of this
ASIL Insight).
This ASIL Insight describes
the key provisions of the Statute
for an International Criminal Court
that emerged from Rome, analyzes why
the United States voted against the
Treaty, and summarizes the highlights
of the Hearings before the Senate
on this issue.
Rationale for
a Permanent International Criminal
Court
In his book, Death
by Government, Professor Rudi
Rummel said that 170 million civilians
have been victims of war crimes, crimes
against humanity, and genocide during
the 20th Century. We have lived in
a golden age of impunity, where a
person stands a much better chance
of being tried for taking a single
life than for killing ten thousand
or a million. Adolf Hitler demonstrated
the price we pay for inaction. After
the Second World War, the international
community established the Nuremberg
and Tokyo Tribunals to prosecute the
major Nazi and Japanese war criminals
and said "Never Again!"-meaning that
it would never again sit idly by while
crimes against humanity were committed.
Fifty years ago, the UN began work
on the project to establish a permanent
international criminal court.
But because of the cold war, the pledge
of "never again" quickly became the
reality of "again and again" as the
world community failed to take action
to bring those responsible to justice
for atrocities in such places as Cambodia,
Argentina, East Timor, Uganda, Iraq
and el Salvador. Radovan Karadzic
and Ratko Mladic were encouraged by
the world's failure to bring Pol Pot,
Idi Amin, and Saddam Hussein to justice
for their international crimes.
Then, in the summer of 1992, systematic
war crimes returned to Europe just
when the UN Security Council was freed
of its cold war paralysis. Against
great odds, a modern day Nuremberg
Tribunal was established in The Hague
to prosecute those responsible for
atrocities in the former Yugoslavia.
A year later, in the small African
country of Rwanda, members of the
ruling Hutu tribe massacred 800,000
members of the Tutsi tribe. In the
aftermath of the bloodshed, Rwanda's
Prime Minister-designate (a Tutsi)
pressed the Security Council: "Is
it because we're Africans that a similar
court has not been set up for the
Rwanda genocide?" The Council responded
by establishing a second international
war crimes Tribunal in Arusha, Tanzania.
With the creation of the Yugoslavia
and Rwanda Tribunals, there was hope
that ad hoc tribunals would be set
up for crimes against humanity elsewhere
in the world. Genocidal leaders and
their followers would have reason
to think twice before committing atrocities.
But then something known in government
circles as "Tribunal Fatigue" set
in. The process of reaching agreement
on the tribunal's statute, electing
judges, selecting a prosecutor and
staff, negotiating headquarters agreements
and judicial assistance pacts, and
appropriating funds turned out to
be too time consuming and exhausting
for the members of the Security Council.
It became apparent that Rwanda would
be the last ad hoc tribunal. A permanent
international criminal court was hailed
as the solution to the problems that
afflict the ad hoc approach. On the
eve of the Rome Conference, both the
U.S. Congress and the Clinton Administration
indicated that they were in favor
of such a tribunal. As Ambassador
Scheffer told the Senate Foreign Relations
Committee on July 23: "Our experience
with the establishment and operation
of the International Criminal Tribunals
for the former Yugoslavia and Rwanda
had convinced us of the merit of creating
a permanent court that could be more
quickly available for investigations
and prosecutions and more cost-efficient
in its operation."
Why the U.S. Voted
"No"
Rome represented
a tension between the United States,
which sought a Security Council-controlled
Court, and most of the other countries
of the world which felt no country's
citizens who are accused of war crimes
or genocide should be exempt from
the jurisdiction of a permanent international
criminal court. The justification
for the American position was that,
as the world's greatest military and
economic power, more than any other
country the United States is expected
to intervene to halt humanitarian
catastrophes around the world. The
United States' unique position renders
U.S. personnel uniquely vulnerable
to the potential jurisdiction of an
international criminal court. In sum,
the Administration feared that an
independent ICC Prosecutor might single
out U.S. military personnel and officials.
The rest of the world was in fact
somewhat sympathetic to the United
States' concerns. What emerged from
Rome was a Court with a two-track
system of jurisdiction. Track One
would constitute situations referred
to the Court by the Security Council.
This track would create binding obligations
on all states to comply with orders
for evidence or the surrender of indicted
persons under Chapter VII of the UN
Charter. This track would be enforced
by Security Council imposed embargoes,
the freezing of assets of leaders
and their supporters, and/or by authorizing
the use of force. It is this track
that the United States favored, and
would be likely to utilize in the
event of a future Bosnia or Rwanda.
The second track would constitute
situations referred to the Court by
individual countries or the ICC Prosecutor.
This track would have no built in
process for enforcement, but rather
would rely on the good-faith cooperation
of the Parties to the Court's statute.
Thus, it was widely understood that
the real power was in the first track.
But the United States still demanded
protection from the second track of
the Court's jurisdiction. In order
to address U.S. concerns, the following
protective mechanisms were incorporated
into the Court's Statute at the urging
of the United States:
First, the Court's jurisdiction under
the second track would be based on
a concept known as "complementarity"
which was defined as meaning the Court
would be a last resort which comes
into play only when domestic authorities
are unable or unwilling to prosecute.
At the insistence of the United States,
the delegates at Rome added teeth
to the concept of complementarity
by providing in Article 18 of the
Court's Statute that the Prosecutor
has to notify states with a prosecutive
interest in a case of his/her intention
to commence an investigation. If,
within one month of notification,
such a state informs the Court that
it is investigating the matter, the
Prosecutor must defer to the State's
investigation, unless it can convince
the Pre-Trial Chamber that the investigation
is a sham. The decision of the Pre-Trial
Chamber is subject to interlocutory
appeal to the Appeals Chamber.
Second, Article 8 of the Court's Statute
specifies that the Court would have
jurisdiction only over "serious" war
crimes that represent a "policy or plan."
Thus, random acts of personnel involved
in a foreign peacekeeping operation
would not be subject to the Court's
jurisdiction.
Third, Article 15 of the Court's Statute
guards against spurious complaints by
the ICC prosecutor by requiring the
approval of a three-judge pre-trial
chamber before the prosecution can launch
an investigation. And the decision of
the chamber is subject to interlocutory
appeal to the Appeals Chamber.
Fourth, Article 16 of the Statute allows
the Security Council to affirmatively
vote to postpone an investigation or
case for up to twelve months, on a renewable
basis. While this does not amount to
the individual veto the United States
had sought, this does give the United
States and the other members of the
Security Council a collective control
over the Court, if no permanent member
vetos the resolution calling for postponement.
These protections proved sufficient
for other major powers including the
United Kingdom, France and Russia, which
voted in favor of the Treaty. But without
what would amount to an iron-clad veto
of jurisdiction over U.S. personnel
and officials, the United States felt
compelled to vote against the Statute.
As Ambassador Scheffer explained to
the Senate Foreign Relations Committee:
"the U.S. delegation certainly reduced
exposure to unwarranted prosecutions
by the international court through our
successful efforts to build into the
treaty a range of safeguards that will
benefit not only us but also our friends
and allies." But Scheffer went on to
say that "serious risks remain because
of the document's provisions on jurisdiction,"
which he explained as follows:
"While we successfully
defeated initiatives to empower
the court with universal jurisdiction,
a form of jurisdiction over non-party
states was adopted by the conference
despite our strenuous objections.
In particular, the treaty specifies
that, as a precondition to the jurisdiction
of the court over a crime, either
the state of territory where the
crime was committed or the state
of nationality of the perpetrator
of the crime must be a party to
the treaty or have granted its voluntary
consent to the jurisdiction of the
court. We sought an amendment to
the text that would have required
both of these countries to be party
to the treaties or, at a minimum,
would have required that only the
consent of the state of nationality
of the perpetrator be obtained before
the court could exercise jurisdiction.
We asked for a vote on our proposal,
but a motion to take no action was
overwhelmingly carried by the vote
of participating governments in
the conference. ... Our position
is clear: Official actions of a
non-party state should not be subject
to the court's jurisdiction if that
country does not join the treaty,
except by means of Security Council
action under the U.N. Charter. ...
The United States has long supported
the right of the Security Council
to refer situations to the court
with mandatory effect, meaning that
any rogue state could not deny the
court's jurisdiction under any circumstances.
We believe this is the only way,
under international law and the
U.N. Charter, to impose the court's
jurisdiction on a non-party state."
In a statement submitted
for the record in conjunction with the
Senate Foreign Relations Committee's
hearing, Richard Dicker of Human Rights
Watch responded to Scheffer's argument
as follows:
"The claim that
the statute is "overreaching" in
that it purports to bind non-States
Parties through the exercise of
jurisdiction over their nationals
is a gross mischaracterization.
To begin with, it does not "bind"
non-States Parties or impose upon
them any novel obligations under
international law. What it does
do, is permit the ICC to exercise
jurisdiction over the nationals
of non-States Parties where there
is a reasonable basis to believe
they have committed the most serious
international crimes. There is nothing
novel about such a result. The core
crimes in the ICC treaty are crimes
of universal jurisdiction-that is,
they are so universally condemned,
that any nation in the world has
the authority to exercise jurisdiction
over suspects and perpetrators,
without the consent of that individual's
state of nationality.
Nor is there anything unusual about
the conferral of jurisdiction over
nationals of non-State Parties through
the mechanism of treaty law. The
United States is party to a dozen
anti-terrorism treaties that provide
universal jurisdiction of these
crimes, and empower States Parties
to investigate and prosecute perpetrators
of any nationality found within
their territory. The United States
has exercised jurisdiction over
foreigners on the basis of such
treaties, without the consent of
their state of nationality [and
even where the State of nationality
was not Party to the Treaty]."
Where Will We Go From Here?
During the Hearings
before the Senate Foreign Relations
Committee, Senator Helms asked Ambassador
Scheffer about the accuracy of news
reports that Secretary of Defense Cohen
had threatened to withdraw U.S. forces
from bases in the territory of our allies
if they did not support the U.S. proposal
for limiting the International Criminal
Court's jurisdiction. Scheffer responded
that the possibility of such consequences
was indeed communicated to several countries
in the course of the negotiations. Senator
Helms then suggested that the United
States announce that it will make good
that threat with respect to any country
that ratifies the International Criminal
Court Treaty. He further urged the Administration
to take the following responses to the
effort to establish the International
Criminal Court: First, the U.S. must
never vote in the Security Council to
refer a matter to the Court's jurisdiction.
Second, the U.S. must block any organization
in which it is a member from providing
any funding to the International Criminal
Court. Third, the U.S. must renegotiate
its Status of Forces Agreements and
Extradition Treaties to prohibit our
treaty partners from surrendering U.S.
nationals to the International Criminal
Court. Finally, the U.S. must provide
no U.S. soldiers to any Regional or
International Peacekeeping operation
where there is any possibility that
they will come under the jurisdiction
of the International Criminal Court.
Ambassador Scheffer was non-committal
as to the adoption of Senator Helms'
proposal, saying only that "the Administration
hopes that in the years ahead other
governments will recognize the benefits
of potential American participation
in the Rome treaty and correct the flawed
provisions in the treaty." In the meantime,
he added, "more ad hoc judicial mechanisms
will need to be considered." Mr. Bolton
and Mr. Casey argued in favor of Senator
Helms' proposed response. Professor
Scharf testified that the United States
cannot make such threats without being
ready to implement them. Further, notwithstanding
Senator Helms' hopes, such threats were
unlikely to prevent the International
Criminal Court from becoming a reality
since the Treaty comes into force after
60 countries ratify it, and there are
nearly twice that many "like minded
states" strongly in favor of the Court.
Professor Scharf further argued that
the U.S. could better protect its interests
by signing the International Criminal
Court statute than by a futile attempt
to prevent other countries from ratifying
the Treaty:
" Within five years
the world will have a permanent
international criminal court even
without U.S. support. As a non-party,
the U.S. will not be bound to cooperate
with the Court. But this does not
guarantee complete immunity from
the Court. It is important to understand
that U.S. citizens, soldiers, and
officials could still be indicted
by the Court and even arrested and
surrendered to the Court while they
are present in a foreign country
which happens to be a party to the
Court's Statute. Moreover, by failing
to sign the Statute, the U.S. will
be prevented from participating
in the preparatory committee which
will draft the Court's Rules of
Procedure and further define the
elements of the crimes within the
Court's jurisdiction. Also, by failing
to sign the Statute, the U.S. will
be prevented from nominating a candidate
for the Court's bench, participating
in the selection of the Court's
Prosecutor and judges, or voting
on its funding."
Ambassador Scheffer's testimony suggested
that the U.S. response to the International
Criminal Court might parallel its efforts
to reform the 1982 Law of the Sea Convention.
The United States refused to sign that
treaty until amendments were adopted
concerning its seabed-mining regime.
In 1994, the signatories to the Law
of the Sea Convention adopted an Agreement
containing the revisions sought by the
United States and the United States
signed the treaty, which still awaits
Senate advice and consent to ratification.
In the interim, Scheffer indicated that
the United States may be willing to
pursue ad hoc judicial measures such
as expanding the jurisdiction of the
existing Security Council-created ad
hoc war crimes tribunals.
About the author
Michael P. Scharf is
Professor of Law and Director of the
Center for International Law and Policy
at the New England School of Law. From
1989-1993, he served as the Attorney-Adviser
in the Office of the Legal Adviser of
the U.S. Department of State with responsibility
for the issue of a permanent international
criminal court. He is the author/co-author
of three books about the Yugoslavia
and Rwanda Tribunals, including the
Pulitzer Prize-nominated Balkan Justice
(Carolina Academic Press, 1997).
Books
American Bar Association. Report
on the International Tribunal to Adjudicate
War Crimes Committed in the Former Yugoslavia.
U.S.A.: American Bar Association, 1993.
American Bar Association. Report
on the Proposed Rules of Procedure and
Evidence of the International Tribunal
to Adjudicate War Crimes in the Former
Yugoslavia. U.S.A.: American Bar
Association, 1995.
Bassiouni, M. Cherif and Peter Manikas.
The Law of the International Criminal
Tribunal for the Former Yugoslavia,
Irvington-on-Hudson, New York: Transnational
Publishers, Inc., 1996.
Judicial Conference of the United States.
Report of the Judicial Conference of
the United States on the Feasibility
of and the Relationship to the Federal
Judiciary of an International Criminal
Court, 1991.
Morris, Virginia and Michael P. Scharf.
An Insider's Guide to the International
Criminal Tribunal for the Former Yugoslavia.
Irvington-on-Hudson, New York: Transnational
Publishers, Inc., 1995 (2 vols).
Morris, Virginia and Michael P. Scharf.
The International Criminal Tribunal
for Rwanda. Irvington-on-Hudson, New
York: Transnational Publishers, Inc.,
1998 (2 vols).
Scharf, Michael P. Balkan Justice:
The Story Behind the First International
War Crimes Trial Since Nuremberg.
Durham, North Carolina, Carolina Academic
Press, 1997.
Articles
American Bar Association Task Force
on an International Criminal Court,
Establishment of An International Criminal
Court, reprinted in 27 Int'l
Law. 257, 1993.
Bassiouni, M. Chief and Christopher
Blakesley. "The Need for an International
Criminal Court in the New International
World Order." 25(2) Vanderbilt Journal
of Transnational Law, 151-182, 1992.
Blakesley, Christopher L. "Obstacles
to the Creation of a Permanent War Crimes
Tribunal." 18 Fletcher Forum of World
Affairs 77-102, 1994.
Crawford, James. "The ILC's Draft Statute
for an International Criminal Tribunal."
88 American Journal of International
Law 140-152, 1994.
Ferencz, Benjamin B. "An International
Criminal Code and Court: Where They
Stand and Where They're Going," 30(2)
Columbia Journal of Transnational
Law 375-399, 1992.
Paul D. Marquardt, "Law Without Borders:
The Constitutionality of an International
Criminal Court," 33 Colum. J. Trans.
L. 74, 1995.
Judicial Conference of the United States.
Report of the Judicial Conference of
the United States on the Feasibility
of and the Relationship to the Federal
Judiciary of an International Criminal
Court, 1991.
Scharf, Michael P. "The Politics of
Establishing an International Criminal
Court." 6 Duke Journal of Comparative
and International Law, 1995.
"Symposium: Should there be an International
Tribunal for Crimes Against Humanity."
6 Pace International Law Review
87-91, 1994.
Wexler, Leila Sadat. "The Proposed Permanent
International Criminal Court: An Appraisal."
29 Cornell Int'l L. J. 665, 1996.
The purpose of ASIL Insights
is to provide concise and informed background for developments
of interest to the international community. The American
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