Fifty years ago the United States took the lead in building modern international human rights law. But lately, Washington has been in the public eye for the obstacles it has raised to its further development. American reservations surfaced during the past year in negotiations to ban anti personnel land mines, to prohibit the use of child soldiers, and to establish an international criminal court. In each case, Washington paid lip service to the proposal while U.S. negotiators worked to weaken it. Because of these reservations, the international community has shown a new willingness to bypass the United States in strengthening human rights law.
The negotiations to ban antipersonnel land mines are the most prominent example of this trend. These indiscriminate weapons have appropriately been called weapons of mass destruction in slow motion. Because land mines cannot distinguish between a combatant and a child, they kill or maim an estimated 26,000 civilians annually. In such war-torn countries as Cambodia, Angola, Somalia, and Bosnia, they exact a terrible toll long after the fighting has ended.
President Clinton recognizes the humanitarian cost of antipersonnel land mines and endorses their "eventual" abolition. However, the United States was not ready to support an unconditional ban in treaty negotiations because the U.S. military wants to use land mines to defend South Korea for another ten years. The issue is not mines already in the ground, which the United States would have ten years to remove under the new treaty, but its intention to plant more than one million new mines in the event of a North Korean invasion. The U.S. military also wants to exempt certain self-destructing antipersonnel mines that it uses in combination with antitank mines. Fearing a laundry list of such exemptions, other governments in the negotiations, including NATO allies, rejected any loosening of treaty provisions on antipersonnel mines. One hundred twenty-two governments signed the treaty. The United States did not.
ARMING THE CHILDREN
The United States also opposes a ban on children under age 18 serving as soldiers. Child soldiers are a large and often neglected humanitarian problem. In countries such as Liberia, Sudan, Uganda, Burundi, Afghanistan, Burma, and Sri Lanka, government or rebel forces have placed guns into the hands of an estimated quarter of a million children, some as young as eight. The practice puts the children physically at risk and frequently leaves them emotionally traumatized, as well as creating a danger for anyone they encounter. American soldiers, who are increasingly likely to be deployed in conflicts where child soldiers roam, can hardly relish the prospect of encountering a 12-year-old carrying an ak-47.
Three treaties already ban the use of children under 15 as soldiers: the 1989 Convention on the Rights of the Child and the two Additional Protocols to the Geneva Convention of 1949. The United States has signed all three, but has not ratified any of them. However, because of the harm associated with using 15- to 17-year-olds as soldiers, and because a higher age requirement makes it more difficult to disguise the use of still younger children, a new protocol has been proposed to the Convention on the Rights of the Child requiring soldiers to be at least 18. The protocol would be optional; no government, including those that have ratified the convention, would be required to adopt it.
The Clinton administration opposes an 18-year-old minimum because the U.S. military recruits 17-year-old high school students upon graduation rather than waiting for their 18th birthday. Less than one-half of one percent of the U.S. military is composed of such underage recruits. And while almost all recruits reach 18 before completing their training, the U.S. military stands alone in rejecting even a compromise proposal that would keep these soldiers out of combat. Since the Pentagon fears that the United States could face heightened pressure to stop recruiting 17-year-olds, U.S. negotiators have taken advantage of the consensus rules governing the negotiations to block other governments from adopting a ban for themselves.
After several years of intensive negotiations, a treaty establishing an international criminal court is scheduled to be adopted at a diplomatic conference in Rome in July. Following on the temporary tribunals established to address the recent slaughter in Rwanda and the former Yugoslavia, the proposed international court would be available to try the worst human rights criminals-those accused of genocide, war crimes, or crimes against humanity-wherever their crimes were committed. The biggest outstanding issue is whether the court will have the necessary strength and independence to function effectively. President Clinton has endorsed an international criminal court in principle, and U.S. negotiators have played a constructive role on such matters as drafting trial procedures and defining the rights of defendants.
But the United States, along with China, Russia, and France, is arguing for a court with circumscribed powers. The debate centers on a number of issues. Must a government or the U.N. Security Council file a complaint to begin an investigation, or may the prosecutor proceed on his own initiative? Must the prosecutor gain the consent of various states with an interest in the prosecution? How deferential should the international court be to national authorities in determining whether they are making adequate efforts to bring an accused to justice?
Most contentious has been Washington's argument that the court should be prohibited from assuming jurisdiction without the express permission of the Security Council whenever the council is addressing a threat to peace or security under its Chapter vii powers. Because the council is likely to be active under Chapter vii in most cases in which genocide, war crimes, or crimes against humanity arise, this restriction would leave the court little room for contemporaneous, independent action. Since any of the council's five permanent members could withhold permission through its veto, the restriction risks politicizing the court's docket and undermining the court as an institution of universal justice.
U.S. negotiators justify this risk by arguing that an independent court might interfere with the Security Council's efforts to contain threats to peace. But in countries like Bosnia, Rwanda, Cambodia, Burundi, and Congo, human rights abuses have been the greatest threat to peace. Governments or rebel groups are more likely to commit atrocities when they believe they can act with impunity. An independent court would undermine this confidence by divorcing the quest for justice from efforts to secure peace, making clear that justice is not a bargaining chip.
Those who claim that peace talks cannot succeed if faction leaders fear prosecution need look no further than the Dayton accord for evidence to the contrary. No amnesty was granted at Dayton, even though the independent International Criminal Tribunal for the former Yugoslavia had already indicted Radovan Karadzi,c and Ratko Mladi,c, then the Bosnian Serb political and military leaders. Moreover, because indicted war crimes suspects continue to use violence and intimidation to enforce their vision of ethnic separation, their arrest is essential for lasting peace.
Washington's response to a compromise proposed by Singapore suggests that the administration's real concern is less protecting the Security Council's Chapter vii role than guarding against any possibility that an American might be prosecuted. Under the compromise, which Britain and many other countries back, if a prosecution threatened Chapter vii peace efforts, the Security Council could vote to halt court proceedings. While allowing the Security Council to prevent a genuine conflict between peace and prosecution, the compromise would make it more difficult for a single permanent Security Council member to block prosecution because of a parochial interest. The Clinton administration is sticking with its position that the Security Council must vote to authorize rather than halt a prosecution. That way the United States, through its veto power, preserves its ability to block any prosecution.
Three other arguments have been used to justify the administration's restrictive view of the court. First, the administration contends that close Security Council control of the court's docket is necessary to avoid creating an unaccountable "superprosecutor," even though the prosecutor would be subject to impeachment and other political constraints. Second, the administration argues that America's unique role in deploying troops worldwide to preserve peace and meet humanitarian crises qualifies it for the extra precaution of control over the court's docket, although that role should hardly justify impunity for any atrocities committed by U.S. forces. Finally, the administration seems concerned that the Republican-controlled Senate would never consent to ratification of a treaty establishing the international court unless the court's powers were limited.
The administation's assessment of the court's prospects for ratification may be accurate. But immediate U.S. accession to the international criminal court treaty is not important enough to justify weakening so significant an institution. It has taken more than 50 years since the founding of the Nuremburg tribunal for the international criminal court to become a realistic prospect. Today's political momentum to create the court will be hard to recreate for future efforts to modify it. In all likelihood, the court launched next July in Rome will be the court that is with us for decades.
Although until now the United States has rarely blocked the strengthening of human rights law, it has always been slow to adopt it. Just as it took the United States 40 years to ratify the Genocide Convention and 25 years to ratify the International Covenant on Civil and Political Rights, it may be some time before Washington is willing to embrace a strong and independent international court. U.S. financial and political backing for the court will still be necessary in the interim to help fund prosecutions and apprehend suspects. But this support will be more likely when the court is pursuing tomorrow's Saddam Hussein than in the abstract when Washington is preoccupied with avoiding the prosecution of Americans.
LEAVING AMERICA BEHIND
The international community is growing more comfortable with leaving the United States out on questions of international human rights law. The land mine negotiations are one example. At first the negotiations proceeded under a rule of consensus, in which any government could block progress. The United States did just that. When these negotiations deadlocked, Canada, backed by a broad coalition of other countries, established parallel negotiations that were open only to those favoring an unconditional ban, effectively bypassing the United States. The administration's negotiators still showed up in a last-ditch effort to gain certain loopholes, but they were sent home empty-handed.
Negotiators of a protocol on child soldiers are being asked to do the same thing. Since the proposed protocol would be optional, pressure is building to follow the precedent Canada set during the land mine negotiations and limit participation to those who support a ban on using children under 18 as soldiers. Even if negotiations were restricted to the 191 governments that have ratified the Convention on the Rights of the Child, the United States, as one of the only two holdouts, would be prevented from blocking the proposed protocol.
The land mine precedent is already influencing negotiations on the international criminal court. A broad coalition of governments favors going further than the United States, in this case establishing a strong and independent court. Dubbed the "like-minded" states, they include developed countries such as Germany, Canada, Australia, Norway, and the Netherlands, and developing countries such as Argentina, Egypt, Ghana, Malawi, and South Africa. Because many of these developing countries have completed transitions from authoritarian to democratic rule, they speak with authority on the importance of having an institution of justice that remains above local pressures for impunity. Many of these governments have come to recognize that to link the success of the court's negotiations to U.S. terms is to condemn it to the vision of one of its least enthusiastic supporters. Instead, they are preparing to seize this historic moment and hold out for a court that cannot be controlled by any single nation, including the United States.
It is out of character for a nation that cherishes its rights at home to oppose strengthening the protection of the rights of others. The United States has a strong interest in the peace and prosperity that tends to follow from upholding human rights. Rather than fearing the development of international human rights law, Washington should embrace it. Failing to do so risks abandoning America's role as a voice of freedom for all.