FEAR OF INTERNATIONAL TRYING: The International Criminal Court

Saturday, April 22, 2000

In 1998, at an United Nations conference in Rome, 120 nations voted in favor of creating the International Criminal Court. Following the model of the Nuremburg and Tokyo war crimes tribunals after WWII, the ICC would hold individuals responsible for their roles in grave human rights violations, war crimes and genocide. Why was the United States one of only seven nations to vote against the ICC? Does the ICC go against American principles of international law or is the United States trying to hold itself above the law? What is the risk that American leaders will be tried before the Court?

Recorded on Saturday, April 22, 2000

Peter Robinson: Welcome to Uncommon Knowledge. I am Peter Robinson. Our show today, the International Criminal Court or ICC. The ICC doesn't exist yet but at a United Nations conference in 1998 in Rome, 120 nations voted in favor of creating an ICC. The ICC will become an actual institution when sixty nations ratify the so-called Rome Statute.

Now what would an international criminal court do? It would attempt to bring bad guys to justice. Idi Amin. While he ruled Uganda 300,000 people were murdered.

Pol Pot, responsible for the deaths of millions of Cambodians.

Sadaam Hussein, we all know all about Sadaam Hussein.

The international criminal court would bring such men to justice, trying them for genocide, war crimes and crimes against humanity. Sounds like a good idea on the very face of it. Two of our guests would agree. William Schabas is a Professor of Law at the University of Montreal and Diane Marie Amann: is a Professor of Law at the University of California at Davis. They are strongly in favor of the creation of an ICC.

Our third guest, Abe Sofaer, a Fellow at The Hoover Institution, is adamantly opposed to the creation of an ICC. Abe's argument is simple. Once the United States signs on to such an institution, it will very quickly find Americans such as this man who, after all, spent several months bombing Serbia hauled into court themselves.

In the Company of Menaces

At a United Nations session in Rome, participating nations voted 120 to 7 to establish an international criminal court. The United States was one of seven that voted against the International Criminal Court, joining Iraq, Iran, Libya, Algeria, China and Sudan.

Judge Abraham Sofaer, is that the company you want to keep?

Abraham Sofaer: No, it is not the company I want to keep. But I still think the U.S. did the right thing.

Peter Robinson: Diane, did the U.S. do the right thing?

Diane Marie Amann: No. I think that the U.S. should be trying to build a coalition to establish an international forum of enforcement of international human rights violations.

Peter Robinson: You want the International Criminal Court?

Diane Marie Amann: Yes. I have reservations, but I support it.

Peter Robinson: Okay, we'll get to your reservations. Bill, you were at Rome.

William Schabas: Oh yes. And the American vote was a great shame and a great disappointment because the United States made a very positive and helpful contribution to the whole process along the way only then to bow out at the last minute because there were some aspects of it well, which uh...

Peter Robinson: You were representing whom?

William Schabas: I was with the Coalition for an International Criminal Court, which is a body of about, now, 800 to a thousand non-governmental organizations that is dedicated to a successful court.

Peter Robinson: What would the International Criminal Court do?

William Schabas: Well the International Criminal Court will be like the tribunals that have already been set up by the United Nations for Rwanda and for the former Yugoslavia. It will try individuals, not countries, but individuals who are charged with the most serious crimes. Specifically genocide, crimes against humanity and war crimes and will sentence them if they are found guilty or acquit them as the case may...

Peter Robinson: So it would try the baddest of the bad in the modern world. It would go after the modern day Nazis.

William Schabas: The baddest of the bad it can get its hands on and over which it can assert jurisdiction.

Peter Robinson: How would it differ from the World Court that sits in The Hague?

William Schabas: The World Court only deals with countries. The World Court only deals with counties. The World Court is a Court of States and so states go, when they have fights with each other, they will go to the World Court in The Hague. This is a court of individuals. It is like a criminal court and it is based on the idea of individual responsibility.

Peter Robinson: And it would be accountable to whom? To the United Nations?

William Schabas: No, it will be accountable to itself. It is a new international body that will be associated with the United Nations but that will be run by the states that participate in it. It needs 60 of them to get started.

Peter Robinson: It needs 60 states, 60 states have to ratify the treaty in order to start the court.

William Schabas: That's right.

Peter Robinson: Who appoints the judges?

William Schabas: They will be appointed, elected at a meeting of all the states that are part of the ICC.

Peter Robinson: Each state gets one vote?

William Schabas: That's right.

Peter Robinson: Alright.

William Schabas: That is why it is important for the U.S. to get in on it.

Peter Robinson: Abe, what is wrong with it?

Abraham Sofaer: It is called an assembly and 40 of those 60 will be able to set the rules, the criminal law rules of the world and pick the judges and fire the judges if they don't like them.

Peter Robinson: You say that as though you don't like it? Why not?

Abraham Sofaer: I don't like it.

Peter Robinson: Why not?

Abraham Sofaer: I think it is very, very dangerous that 40 states... There are 188 member states of the UN right now. There are forty states that you couldn't even name, that you don't even know that could control the assembly, assuming that they were the 40 out of the 60 that signed on and they will define aggression. And aggression will undoubtedly mean something that, if you applied it to American leaders, would make criminals out of all our recent Presidents.

We have had a different view of the use of force...of the law of the use of force than most countries of the world. Most international law professors of the world. And that difference, the difference between the U.S. view and the view of many other states would become criminalized. And where now we have a veto in the Security Council, we would have no...

Peter Robinson: What is our view? What is the difference between the American view of the use of force and the other international view?

Abraham Sofaer: Well, for example, if an American is attacked abroad because he is an American, our view is that is an attack on the United States whereas most International Law Professors would say you have to have a physical attack on the United States in order to qualify for self-defense. That is just one of many examples.

Peter Robinson: So, but it would be along the lines of that law that Reagan went into Libya, for example?

Abraham Sofaer: Absolutely.

Peter Robinson: Our soldiers were being attacked by terrorists in Europe...

Abraham Sofaer: And that Clinton went into Afghanistan.

Peter Robinson: And on and on it goes.

Abraham Sofaer: And that Lyndon Johnson went into the Dominican Republic.

William Schabas: These countries are only doing, collectively, what any one of them could do individually.

Any country can decide, Canada, France, Tonga, Fiji can decide to create a crime of aggression and if an American President comes to that country and they say we have jurisdiction over them, they could try them for the crimes. The same with war crimes and crimes against humanity.

All that the sixty states who are setting up the court are doing is saying we are going to band together and something we have always been able to do under the UN and the United States will do individually, too.

Peter Robinson: Diane, what is wrong with the argument against it that Abe just put?

Diane Marie Amann: I think that he, first of all is overstating his case. He has declared what aggression would be and how it might be prosecuted by the court. In fact there has been no determination of aggression, how aggression would be adjudicated. In fact, some of the proposals would require some sort of security council clearance before aggression could even be handled by the court.

With regard to the concern about constraints on U.S. unilateral action abroad, I think that's a good thing.

Peter Robinson: You are in favor of an International Criminal Court to provide a brake on American policy?

Diane Marie Amann: Yes.

Peter Robinson: You want an international body so you want....

Peter Robinson: Tribunals have been set up for Bosnia and Rwanda. Why do we need to establish a permanent court?

Hague Sweet Hague

We have in English common law the notion of a trial by a jury of one's peers. Yank somebody out of the jungles of South America or out of the mountains of the Balkans and send him to The Hague in front of judges who have been elected by forty countries... This is...

William Schabas: Now we are already doing this and it is working. We have set one up for Yugoslavia where you have judges from all over the world. You yank people out of Bosnia or Kosovo or whatever and you bring them to The Hague.

William Schabas: We have another one for Rwanda and I have visited the tribunal in Rwanda and I visited Rwanda many times and seen the impact that the successes that that tribunal is having on the population.

It is providing a model for them and it is very important in terms of the search for the truths about these atrocities to have a credible international body ruling on it the same way we still look to the Nuremburg Judgment as the most credible answer to people, for example, who deny the Holocaust.

Peter Robinson: What additional value do you achieve by having a permanent court?

Peter Robinson: Instead of setting them up as needed?

William Schabas: Well they have always been vulnerable to the claim that they were set up by people with a political agenda. Victims at the end of World War II. A politically charged Security Council in the case of Rwanda and the former Yugoslavia. This one will have more credibility because it doesn't have a political agenda. It is not being dictated by a small group.

Peter Robinson: You'd agree with that?

Diane Marie Amann Yes. And you need permanence. You need to develop a body of law that everyone recognizes. Right now, when you have ad hoc tribunals first of all you have the problem, the complaint of victors' justice and secondly there is an argument that people don't understand what the international community will not tolerate.

Abraham Sofaer: I agree with Bill and Diane that we need a permanent International Court to deal with human rights violations in the world.

Peter Robinson: You do?

Abraham Sofaer: Absolutely. Not only would it be the right thing to do, it would be much more efficient than having individual tribunals that all will have different...

Peter Robinson: Well how would you set it up then, Abe?

Abraham Sofaer: I would set it up with the Security Council. The problem is that it is taken away from the political structure we set up to control international peace and security. And this court, the court that was designed in Rome, it is really a tragedy that all that effort went into a court that will not achieve the very, very important objective that, that all of us want.

William Schabas: Your idea is really a non-starter. I mean the Security Council setting it up. How unrealistic. We just have a case now where we are talking about trying to set up a tribunal for Cambodia. It is blocked in the Security Council because of the veto. The problem with the Security Council is it is going to be very rare we are going to have the unanimity to set it up when we really need it.

I mean you criticized the International Criminal Court because of the holes in its jurisdiction. The Security Council is going to have an enormous hole.

Abraham Sofaer: That is right. but the holes that result from the Security Council weaknesses and I agree that it is weak, a weakness that you don't have uniform justice. But at this stage in the development of human rights, you are going to have that weakness in exchange for the security and stability and, and monetary support and military support, enforcement ability of a Security Council.

The fact of the matter is, at least in Yugoslavia, you have got soldiers out there that are authorized by the world body...

Peter Robinson: United Nations soldiers.

Abraham Sofaer: Exactly. Or United Nations approved soldiers. They are authorized out there to arrest people and bring them to justice. And what have they gotten? They have gotten about six trials in all the years for $200 million. You cannot achieve justice, in any meaningful sense of the word, through a court. It is necessary to have a permanent court but in terms of justice you need to rely on the political forces of the world doing things about places like Rwanda and Bosnia.

Peter Robinson: So the first course recourse should be...

Let's move on to Kosovo. In that conflict, would the ICC been able to charge American leaders with war crimes?

Courting Disaster

The United States just engaged in a bombing campaign against Serbia. We bombed civilians. It may be the first war in which the United States has ever engaged in which the sum number of civilians we killed was higher than the number of military personnel. Would the United States, would General Clark, who ran the operation for NATO, would an American General get hauled into court on charges of aggression or criminal conduct as a result of the bombing in Serbia?

Diane Marie Amann: I think there is concern there. Uh in point of...

Peter Robinson: So the answer is maybe it might happen?

Diane Marie Amann: Yes and in point of fact, um the prosecutor of the Yugoslav Tribunal which has jurisdiction over the Kosovo action has said that it is concerned about some of the activities that NATO is engaging in.

Peter Robinson: The prosecutor of the UN set-up tribunal?

Diane Marie Amann: That's right.

Abraham Sofaer: And Milosevic has sued in the International Court of Justice and they have denied him preliminary relief, but here is a man who has been indicted...

Peter Robinson: Wait a minute, the International Criminal Court of Justice...

William Schabas: No the International Permanent Court.

Abraham Sofaer: The International Permanent International Court of Justice. The ICJ.

Peter Robinson: Alright.

Abraham Sofaer: The ICJ in The Hague, Milosevic has sued all the NATO nations individually. The court has ruled that several of them they don't have jurisdiction over. But the others, the court will, may actually rule that the action against Milosevic was illegal under international law.

William Schabas: But if you have courts then everybody gets to go before them, including the United States.

Abraham Sofaer: We agreed to go before the ICJ on the assumption that we would have the veto in the Security Council to prevent unrealistic rules of international law from being imposed upon us.

William Schabas: You know, you hold up Milosevic taking NATO to the International Court of Justice as some terrible thing.

Abraham Sofaer: It is grotesque.

William Schabas: Let him go to court and he'll lose. I mean what is the big deal?

We'll see. There are fifteen judges, this is an international institution that has existed since the beginning of the United Nations and before and the United States...the President of that court is the former legal advisor, I think your predecessor of the... Deputy. Yes, he is...

Abraham Sofaer: I...and I am very much in favor of his appointment. He is an excellent Judge and I am not worried... He is frequently in assent.

William Schabas: ...about this court. Fine, let him... But this is what happens when you go to court, as long as you have courts even the President of the United States can be judged there.

Peter Robinson: Why should America join an institution that would undermine our ability to pursue our foreign policy?

Fear of International Trying

It would seem to me that the United States has ample reason to be very leery of permitting itself to become involved in an international body in which judges can be elected, as Abe just pointed out by 40 countries, 39 of whom an ordinary American couldn't even name. What do you say to that, Diane?

Diane Marie Amann: It comes down to what you think about the role of the United States in what I like to call the international community. If you believe that America is different and unique and to use...

Peter Robinson: But isn't it obvious? Isn't it obvious?

Diane Marie Amann: I don't think it is as obvious...

Peter Robinson: We are the world's only super power at this moment and it falls on...

Diane Marie Amann: At this moment.

Peter Robinson: At this moment, certainly. But we are talking about ratifying a court at this moment.

Diane Marie Amann: The European Union is, is coming very close behind...

Peter Robinson: It falls upon us disproportionately...

Diane Marie Amann: ..and I think that we have to begin to recognize that we may not always be unique and indispensable and, at the very least, one of our responsibilities even if we are unique and indispensable is to be a team player. And I think that we need to begin to try...

Peter Robinson: On what team? I mean...

Diane Marie Amann: The rest of the world.

Abraham Sofaer: We need to be the moral leaders of the world and there is no doubt about it. We defeated Hitler with the help of our allies and those allies are the permanent members of the Security Council and the world hasn't changed so radically that we can move away from what has not gotten more potential than it has ever had. The Security Council in the UN as a source for really forceful application of humanitarian principles throughout the world.

Peter Robinson: Right.

Abraham Sofaer: And we are undermining that force. And let me say this. I think we, the U.S. government in particular is going...

Peter Robinson: This court is undermining the UN?

Abraham Sofaer: Absolutely. This court very, very drastically challenges the power of the Security Council over international peace and security.

It gives to 40 states in the Assembly and there is no doubt about this, I have read the treaty. It gives to forty states potentially the power to define aggression and that goes to the heart of what international peace and security means.

Peter Robinson: Your court is going to undermine the United Nations?

William Schabas: No. If the United States can't agree with it, then the United States won't join. But if 40 states, if 60 states join a statute and join an institution and they delegate to 40 of those members the right to the findings. That is their sovereign right. The same way the United States has a sovereign right to define its own laws within its own territory and apply them, as it does, by the way.

Abraham Sofaer: You do not have a sovereign right to violate the UN charter and the UN Charter gives...

William Schabas: Nobody is saying it will violate the UN Charter.

Abraham Sofaer: Well I am saying that it is very likely to.

William Schabas: Well you know, Abe, let's be serious. We know that this is one of the arguments with the court right now is this relationship. And it is unresolved at this point. To suggest that this is all settled law now is, is to distort the nature of the debate. Aggression has not been defined. It is not even clear when that will take place. As we speak right now, we are talking about a court whose jurisdiction is over war crimes and there the United States made a significant and very important contribution to the definition of the war crimes, played one of the key roles at the Rome Conference in that area.

Crimes against humanity, same thing in terms of the role of the United States and finally, genocide, a definition that was created way back in 1948 virtually at the instigation of the Department of State ...

Abe said a moment ago something, I hope I am not misquoting him, that the United States will provide the moral leadership. I think that was the term.

And I think the way you provide leadership is showing that you can live within the law, not above the law.

Peter Robinson: But doesn't the ICC run counter to the fundamental principles of our own law?

Statutes of Liberty

The Declaration of Independence listed a number of charges against King George III as grounds for declaring independence from Great Britain. Listen to a couple of them.

The King had subjected the people of this continent "to a jurisdiction foreign to our Constitution and unacknowledged by our laws." Here is another one. He had "transported us beyond the seas to be tried for pretended offenses." A jurisdiction foreign to our Constitution and unacknowledged by our laws, yanking Americans overseas to stand trial. This is fundamental to our society and you are willing to give it up.

Diane Marie Amann: The International Criminal Court is not an absolute monarchy operating by divine revelation.

Peter Robinson: On the contrary, it has even more power than George III ever had.

Abraham Sofaer: You lose me on that, I mean..

Diane Marie Amann: No, it has power... I don't think we can lose sight of the fact that 120 nations have said they want this. To the extent that things got out of control in Rome, it was because the U.S.A. could not control things. The U.S.A. going into Rome said, it is going to be a long, long time before this ever happens. The U.S.A. got to Rome and found out that for the rest of the world, the time is now.

Peter Robinson: You are not concerned that it at least muddies national sovereignty for this country?

William Schabas: You have already muddied it.

Peter Robinson: Quiet.

William Schabas: But you accepted the Yugoslav Tribunal and it already does...

Peter Robinson: But the Yugoslav Tribunal is temporary and for a specific purpose.

Abraham Sofaer: Peter, citing things like that gets you nowhere.

Peter Robinson: It doesn't?

Abraham Sofaer: It doesn't.

Peter Robinson: Not even with you?

Abraham Sofaer: Absolutely not.

Peter Robinson: You aren't concerned?

Abraham Sofaer: We are a sovereign nation. We have the power to say yes or no to this court. And if we exercise our sovereign power to say yes...

Peter Robinson: If we exercise our sovereign power to say yes, we are stuck with the thing for decades. You know you can't get out of something like that.

Abraham Sofaer: Absolutely and it has to be the right kind of court. And if it were the right kind of court we should say yes. We should step in and do our role. We should support this kind of an institution. The problem is...

Peter Robinson: You just want to do it, you and I want it through the United Nations.

Abraham Sofaer: ...this court will not dictate.

Peter Robinson: Is that your position, Abe?

Abraham Sofaer: I want to maintain the international security structure that has kept the peace of the world overall intact for the last 55 years. I do not want to undermine that.

Peter Robinson: You don't see the ICC as a threat to NATO?

Abraham Sofaer: I see the ICC as a threat to any of the permanent members at one point or another which could destabilize relations among the permanent members. And the purpose...

Peter Robinson: The permanent members of the Security Council.

Abraham Sofaer: And the purpose of the veto is to maintain that stability. And I do not want to see that stability affected, particularly by a court that doesn't even have the jurisdiction to do the kind of good that they claim they are going to do.

William Schabas: The court can't get rid of the veto. The veto is there and the UN Charter is superior in law.

Peter Robinson: Explain the veto. Just explain the veto.

William Schabas: Well the veto,...any one of the five permanent members of the Security Council. U.S., China, Russia, U.K., France has a veto on action by the Security Council and that doesn't go away with the International Criminal Court. It is clear that if the International Criminal Court acts against that that the charter of the United Nations trumps the ICC. So what's to worry?

Abraham Sofaer: I am so glad you put that in.

Peter Robinson: Any one of the five members will be able to veto.

William Schabas: You don't need to put it in, it is in the UN Charter, you know that.

Peter Robinson: And so the, the International Criminal Court can be vetoed. And action, a specific action can be vetoed by one of the five members of the Security Council?

William Schabas: Sure, if you read the United Nations Charter.

Diane Marie Amann: Not only that, what is in the statute is that the Security Council can say to the ICC, if the ICC takes a case that the Security Council doesn't want it to, no. It can say for 12 months we are going to put it off and they can renew that forever.

Abraham Sofaer: This is the kind of thing that human rights' lawyers are willing to argue in order to get their way.

Diane Marie Amann: It is in the statutes, Abe.

Abraham Sofaer: And mislead you. The fact of the matter is...

Diane Marie Amann: There is not any argument.

Abraham Sofaer: ...that what is in there is a statement that the Security Council has to act unanimously, all the permanent members, to block the court and can only do so for a temporary period. So the veto is destroyed...it is inconsistent...

Peter Robinson: During the wars in the former Yugoslavia, would the ICC have made any difference?

Balkan' at the Court

During the decade of the '90s, we saw four wars in the Balkans, all of them very nasty. There were lots of human rights ...it was horrible. All four of them. How would it have been different if the International Criminal Court had been in existence?

Diane Marie Amann: First of all, the perpetrators would have known that there was a danger that one day they would be brought before the court that might have affected their behavior in the outset. Secondly, the court could have immediately tried to investigate what was going on. I think that it has been hard for these ad hoc courts starting years after the event happens to reconstruct it to put together a case.

Peter Robinson: So you invest this court with an investigative staff. Resource to send in investigators, is that part of your plan?

Diane Marie Amann: Yes, it would have some.

William Schabas: There is also a truth seeking function of this court which is extremely helpful to the process also. The very important process of reconciliation that has to, has to follow the war, has to follow the conflict in Kosovo, in Bosnia, in Rwanda and elsewhere.

Peter Robinson: Let's close this out with some predictions here. The International Criminal Court, the statute calls for the court to take effect when sixty nations have ratified it. Is that a correct statement?

William Schabas: That's right.

Peter Robinson: Two years from now, will that have taken place? Will there be an International Criminal Court, Bill?

William Schabas: Yes, in the Coalition of the International, for the International Criminal Court, we are tracking this closely and we expect somewhere towards the end of the year 2001 we are going to hit that magic number.

Peter Robinson: Senator Jesse Helms of North Carolina, Chairman of the Senate Foreign Relations Committee has said that if the treaty gets sent to him it will be "dead on arrival." Can you see the United States joining, ratifying the International Criminal Court any time in the next five years?

Abraham Sofaer: It would be totally irresponsible for anyone to do that in the U.S. government.

Peter Robinson: Diane?

Diane Marie Amann: As it stands now, no, but David Scheffer, who is the leading U.S. negotiator, just in the last week said that the U.S. is continuing to try to work to fix the statute. Whether it will be fixed to the U.S. liking or not, I don't know.

Peter Robinson: You think in two, three, five years there is a prospect it will be changed and the United States will buy in. Jesse Helms has said this treaty will never be ratified as long as I draw breath. I think he is right on that so I can't predict years exactly.

Peter Robinson: As a practical matter, as a practical matter do you see the United States participating any time in the next two, three, five years?

William Schabas: The United States is already participating very actively in the process of setting this thing up. The administration would like to sign a treaty...

Peter Robinson: The administration will end sooner than two years.

William Schabas: Oh, but you will have a new administration, there will be new changes, this is a democracy and...

Peter Robinson: So you are genuinely hopeful?

William Schabas: I think that the people of the United States want to have international institutions that help to put an end to genocide and crimes against humanity. They must be favorable to this.

Abraham Sofaer: See, and that is where I disagree. We have a court that has indicted Milosevic, and Milosevic rules. We have had all kinds of actions, military actions, wars conducted against Sadaam Hussein. Sadaam Hussein rules.

Peter Robinson: You don't want to at least give them credit for trying?

Abraham Sofaer: I give them credit for trying to create a court but you don't deal with the Mafia by setting up a criminal court in downtown Manhattan. You need a police force, an FBI. You need guns to deal with people who kill people.

Peter Robinson: You need the military might above all the United States.

Abraham Sofaer: Exactly. We need to be serious about correcting evil and that requires use of force.

Peter Robinson: Abe, Diane and Bill. Thank you very much.

Our guests agree there is no prospect of the United States supporting the ICC anytime soon, yet there is every prospect the ICC will indeed come into existence without American support. It will be interesting, to put it mildly, to see how the ICC affects American foreign policy. Certainly no American President will want to keep company with men like these.

I am Peter Robinson, thanks for joining us.