Courtesy Reuters

The recent, brutal civil wars in Cambodia, Bosnia, Rwanda, and the Congo make plain the need to prosecute amoral leaders who show no care for civilian lives. At least, this seemed the American position over the last four years as Bill Clinton and Madeleine Albright touted the creation of the International Criminal Court as a key aim of American foreign policy. And yet in July 1998, when the draft treaty to create the ICC was approved in Rome, the United States found itself in a nasty minority, siding with Libya, Iraq, Yemen, and Qatar against the court. (The final vote was 120 in favor, 7 opposed, and 21 abstentions.)

Some of Washington's concerns were serious and legitimate. American troops are deployed across the globe, and should not face the added danger of politically motivated prosecutions. But the administration failed to think through or effectively articulate its position on the court. Throughout the negotiations, wary of a skeptical Congress, the White House dithered. Though international meetings on the icc began in 1994, the United States failed to set its bottom line -- Would it back the court or not? Under what terms? -- until the president's return from China in early July. Only then, four weeks into the five-week U.N. final conference in Rome, were cabinet debates resolved and instructions issued to the American negotiating team. But by then it was too late for American diplomats to convince frustrated friends and allies to accommodate new U.S. demands -- a case study in how not to conduct multilateral diplomacy. A historic opportunity to shape the court in America's image was lost. Thanks to administration ambivalence and the failure of the United States to make its case to the world, what we got instead was a court America cannot agree to -- at least not until the court's good faith has been tested over time.

RESISTANCE TO U.S. LEADERSHIP

The timing of the Rome conference was inauspicious for the United States. Flush from their triumph at the Ottawa land-mines conference (where they brushed aside American military needs in Korea), the caucus of "like-minded" states demanded an unfettered court. Under Canadian and Norwegian leadership, the "like-minded" group pried apart the unity of traditional NATO allies. Making matters more complicated, the European Union had also hailed an independent court as the hallmark of its post-Bosnia try at a common foreign and security policy. The Germans, French, and even the British (citing the "ethical dimension" of Tony Blair's foreign policy) went to Rome ready to abandon America in their race for European leadership. And nongovernmental organizations bluntly eschewed compromise, overlooking the need to reassure responsible military leaders.

Political tensions between North and South at the United Nations also complicated the bargaining. Developing countries feel a new jealousy of the Security Council's exclusive authority over international security matters. The recent, failed attempt of middle-rank powers to expand the Council has exacerbated the mood. Together, these factors made it impossible for the United States to preserve an American veto over prosecution decisions by using the requirement of Council approval.

SALVAGING THE TREATY

With all of its NATO allies committed to the International Criminal Court, America cannot now turn its back on it or give up the attempt to improve it. Senator Jesse Helms (R-N.C.) has declared war on the ICC for not giving "100 percent protection" from prosecution to American GIS. Indeed, exposure of U.S. troops and commanders to judgment by an international court free to decide for itself what is a "disproportionate" use of force (and hence a war crime) should concern Washington. But the chairman of the Senate Foreign Relations Committee must be persuaded that flaws in Rome can be constructively addressed, protecting American interests without abandoning America's leadership role.

Though the problems with the court are not fatal, they cannot now easily be fixed by renegotiation. The ICC treaty bars formal amendments for the first seven years and forbids individual reservations (opt-outs by countries). And the hostility that lingers toward the United States, in countries that made hard concessions at Rome only to then see America reject the entire treaty, makes the prospect of early alterations even more unlikely. Still, a preparatory session, scheduled for next year to hammer out rules of evidence and procedure, might be a good place to start addressing American concerns. Niggling problems in treaties have been solved in the past through lawyerly manipulation; for example, the worst parts of the Law of the Sea Treaty were amended through a side-agreement, allowing parties to avoid revisiting the cumbersome treaty itself. What worked then could now help rescue Rome, although anger toward Washington makes this path difficult.

Nonetheless, even the most obdurate of the nongovernmental organizations and "like-minded" states that dominated the Rome conference must recognize the importance of eventual U.S. participation in the treaty. Effective authority in international politics requires power as well as legitimacy. The international tribunal for the former Yugoslavia has found that its orders are paid little heed unless the United States and its allies lend their diplomatic, economic, and military muscle. In order to secure defendants, evidence, and funding, the new court must rely on the goodwill of many states -- but foremost among them, the world's one remaining superpower.

(WAR) CRIMES AND PUNISHMENT

The general American displeasure (and the general displeasure with America) has obscured the fact that much good work was done at the ICC conference. Rome was not the total U.S. defeat that many first thought. Civil wars were brought within the court's jurisdiction, a major advance from 1949 when the drafters of the Geneva Conventions did not dare tackle internal conflicts. Thanks to this innovation, many newly democratic regimes see the Rome treaty as a source of protection, one that will guard against and punish misconduct should civil conflict resume. The treaty condemns sexual violence as an instrument of war, despite an early deadlock between women's groups and the Vatican over the treatment of enforced pregnancies.

The tragic concession made at Nuremberg to Stalin has been reversed: "crimes against humanity" can now be punished even in the absence of a war, closing a loophole that shielded Soviet leaders from liability for Katyn Forest and the Gulag. Rulers can now be punished for crimes committed against their own populations. The treaty also deals with the issue of command responsibility, pointing the finger at military and civilian leaders who fail to stop wanton acts by those under their control. And merely having a permanent court on the ground will short-cut the delays and political horseplay (seen with the Bosnia and Rwanda tribunals) involved with creating a new ad hoc tribunal to address each new crisis.

SOURCES OF COMFORT

America's allies responded in Rome to American fears with a mixture of sympathy and indifference -- somewhat understandably, given the mixed messages coming out of Washington. Important changes were made in the treaty draft to reassure the United States, such as privileging national security information, and allowing a "superior orders" defense to be made when the command at issue is not clearly illegal. The treaty directs that war crimes be targeted when they are part of a "plan or policy" or "large-scale commission," not isolated acts. And the ICC prosecutor must give advance notice to a country whose troops may be investigated. Domes tic systems keep the right to handle the matter first. The ICC will only step in if local courts have collapsed or the country shows a "genuine unwillingness" to act in good faith. Even then, the prosecutor can begin an investigation only after getting approval from a chamber of ICC judges, with an immediate right of appeal by the affected state.

In another effort to allay U.S. fears, the Rome treaty protects all bilateral agreements exempting U.S. troops stationed abroad from local criminal justice systems. Terms can now be added to these "status of forces" agreements to protect U.S. troops from international turnovers as well. The odds are good that U.S. partners will agree to such codicils if the matter is handled quietly.

Expanding the powers of the tribunal to cover legal categories beyond genocide, crimes against humanity, and war crimes was also deliberately made difficult by the ICC's drafters. Amendments now require the support of seven-eighths of the signatories, and any party that dissents will not be covered by the change. This means that if it joins the treaty, the United States need not worry about the expansion or addition of offenses it does not agree with (such as the ill-defined crime of "aggression").

MISPLACED ANXIETY

In its fateful decision to vote against the treaty, the United States complained of having been rebuffed on two issues. Yet these issues were, in fact, red herrings, since they added little to the risks the Americans were already willing to accept. U.S. negotiators made no objection to the complaint system that allows any state party, friend or foe, to refer investigations to the court without Security Council approval. Yet Washington vehemently opposed an independent prosecutor out of fear he might start investigations on his own motion, subject only to court approval.

In addition, the American team pushed to broaden the treaty's probationary period. The Rome conference established that for the first seven years, states need only accept the court's power over genocide and crimes against humanity (though at the end, countries must accept war crimes coverage as well or quit the treaty). The United States argued for a ten year period and to exclude coverage of crimes against humanity during that time. But this would not have eliminated the risks to American troops; a rogue state bent on harrying Americans will use any available charge.

WATCH AND WAIT

Despite the treaty's protections, the possibility remains that hostile states will file complaints against American troops and civilian leaders to settle political scores. U.S. military decisions -- in peacekeeping, antiterrorist enforcement, freedom of navigation exercises, and strategic deterrence -- will be scrutinized by its enemies hoping to show that an American use of force was disproportionate or improper (and thus criminal).

Because this risk remains, the evaluation of the court's ultimate potential (and whether America should join) must depend on one's confidence in the court's leadership. The same logic should guide the ICC and reassure Washington: the tribunal will only hamstring itself if it permits the abuse of its powers for political leverage, and the new judges must realize this. The point would already be more broadly recognized had the mood in Rome been less fractious.

The court's future will hinge on the sound choice of a prosecutor and judges, and the enunciation of prosecutorial priorities. The ICC was set up to address the horrors of contemporary civil wars, not cut down America's preeminence in the post -Cold War world. The U.S. military role in international security will not be altered by the evangelism of an international court, and the ICC would be foolish to try.

After all, unless it acts scrupulously, the court will never win financial backing. The ad hoc tribunal for the former Yugoslavia runs an annual budget of $70 million, while its counterpart for Rwanda struggles by with $40 million. Many states hope that the United Nations will fund the new court in its first years of operation. But this again devolves to the United States, as the deep pocket that supplies a quarter of the world body's budget (if and when it pays its dues). While other states will resist explicit American conditions on tribunal funding (thanks to the ongoing U.N. dues battle), they must recognize that the United States will never bankroll an abusive court.

BENIGN ABSTENTION

As this suggests, the United States need not even be a party to the Rome treaty (as it is not) to influence the court. In fact, allowing the ICC to mature independently while formally remaining outside the treaty structure is one good way for the United States to hedge its bets while maintaining NATO unity and exercising military leadership. The United States can watch the court take shape before deciding whether to join. If the court handles its work in a just and fair manner, free from political bias, only then need Washington consider signing up.

This strategy of benign abstention will not be completely risk-free. Rome technically allows the prosecution of war crimes in international conflicts even if the defendant's state has not ratified the treaty. But the 1949 Geneva Conventions already allow foreign courts to undertake prosecutions in international wars; the risk is not new. And amended "status of forces" agreements should shield U.S. troops in countries where they are stationed.

Having lost in Rome, the United States will still get other chances to lead the battle against war crimes. For instance, there remains an important role for ad hoc tribunals created by the Security Council, since the ICC's jurisdiction will be prospective only. But the power and prestige of the United States would be enhanced if it helped improve the ICC, rather than retreating in dismay.

Doing so will require foresighted diplomacy, not always shown in preparation for Rome: raising issues well in advance through NATO and other alliance channels, and through quiet contacts in national capitals at a political level where flexibility remains possible.

The United States should learn other long-range lessons from its missteps at Rome. For one, the tensions and differing priorities of U.S. cabinet departments are no excuse for failing to form a coherent negotiating strategy or present a united front. For another, Americans must realize that their allies no longer view them as indispensable, and that if America stonewalls, it may get left behind. Negotiating vital matters should not be left to the last minute, to the chaos of open conferences and the mystery of working groups from which Americans may be excluded. And Rome should teach American diplomats not just to listen to Capitol Hill late in the game, once thoughts turn to ratification, but to take Congress seriously and heed its warnings early on, at the start of the negotiation process. Most important, the ICC failure shows that America must learn to decide what it wants, not let rhetoric take the place of hard-nosed decision-making. When the opportunity for action arises, the United States should have its mind already made up, so that it may lead future negotiations and not just lamely follow them.

  • Ruth Wedgwood is a Professor of Law at Yale University and a Senior Fellow at the Council on Foreign Relations.
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