[Congressional Record Volume 140, Number 2 (Wednesday, January 26, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: January 26, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF STATE AUTHORIZATION ACT
The PRESIDING OFFICER. Under the previous order the Senate will now
resume consideration of S. 1281 which the clerk will report.
The legislative clerk read as follows:
A bill (S. 1281) to authorize appropriations for fiscal
years 1994 and 1995 for the Department of State, the United
States Information Agency, and related agencies, to provide
for the consolidation of international broadcasting
activities, and for other purposes.
The Senate resumed consideration of the bill.
Pending: Helms Amendment No. 1248, to withhold funds for
fiscal years 1994 and 1995 from the funds authorized for
contributions for International Organizations until the
President certifies that no United Nations Agency or United
Nations-affiliated agency grants any recognition to an
organization that condones pedophilia.
vote on amendment no. 1248
The PRESIDING OFFICER. The question occurs on amendment No. 1248
offered by the Senator from North Carolina [Mr. Helms]. The yeas and
nays have been ordered and the clerk will call the roll.
The legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Rhode Island [Mr. Pell] is
necessarily absent.
I further announce that, if present and voting, the Senator from
Rhode Island [Mr. Pell] would vote ``aye.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 99, nays 0, as follows:
[Rollcall Vote No. 2 Leg.]
YEAS--99
Akaka
Baucus
Bennett
Biden
Bingaman
Bond
Boren
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Danforth
Daschle
DeConcini
Dodd
Dole
Domenici
Dorgan
Durenberger
Exon
Faircloth
Feingold
Feinstein
Ford
Glenn
Gorton
Graham
Gramm
Grassley
Gregg
Harkin
Hatch
Hatfield
Heflin
Helms
Hollings
Hutchison
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
Mathews
McCain
McConnell
Metzenbaum
Mikulski
Mitchell
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pressler
Pryor
Reid
Riegle
Robb
Rockefeller
Roth
Sarbanes
Sasser
Shelby
Simon
Simpson
Smith
Specter
Stevens
Thurmond
Wallop
Warner
Wellstone
Wofford
NOT VOTING--1
Pell
So the amendment (No. 1248) was agreed to.
Mr. HELMS. Mr. President, I move to reconsider the vote.
Mr. KERRY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senate will be in order.
The Chair recognizes the Senator from South Dakota [Mr. Pressler].
Amendment No. 1253
(Purpose: Relating to United Nations budgetary and management reform)
Mr. PRESSLER. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from South Dakota [Mr. Pressler], for himself,
Mr. Byrd, Mr. Helms, Mr. Conrad, Mr. Burns, Mr. Dole, Mr.
Stevens, Mr. Lott, and Mr. Domenici, proposes an amendment
numbered 1253.
Mr. PRESSLER. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Beginning on page 72, strike out line 1 and all that
follows through line 5 on page 74 and insert in lieu thereof
the following:
SEC. 170B. UNITED NATIONS BUDGETARY AND MANAGEMENT REFORM.
(a) Withholding of Assessed Nonpeacekeeping Contributions
to the United Nations.--(1) In fiscal year 1994, 10 percent
of the amount of funds authorized to be appropriated for that
fiscal year for United States assessed contributions to the
United Nations and its specialized agencies shall be withheld
from obligation and expenditure until a certification is made
under subsection (b).
(2) Beginning with fiscal year 1995 and at the beginning of
each fiscal year thereafter, 50 percent of the amount of
funds authorized to be appropriated for each fiscal year for
United States assessed contributions (other than for
peacekeeping activities) to the United Nations and its
specialized agencies shall be withheld from obligation and
expenditure until a certification is made under subsection
(b).
(b) Certification.--The certification referred to in
subsection (a) is a certification by the President to the
Congress that--
(1) the United Nations has established an independent and
objective Office of Inspector General to conduct and
supervise audits, inspections, and investigations relating to
the programs and operations of the United Nations and each of
the specialized agencies of the United Nations;
(2) the Secretary General of the United Nations has
appointed an Inspector General, with the consent of the
General Assembly, solely on the basis of integrity and
demonstrated ability in accounting, auditing, financial
analysis, law, management analysis, public administration, or
investigations;
(3) the United Nations Office of Inspector General is
authorized to--
(A) make investigations and reports relating to the
administration of the programs and operations of the United
Nations and its specialized agencies;
(B) have access to all records and documents or other
material available which relate to those programs and
operations; and
(C) have direct and prompt access to any official of the
United Nations or of any of its specialized agencies,
including any head of a specialized agency or official of the
United Nations Secretariat;
(4) the United Nations Office of Inspector General is
keeping the head of each specialized agency, the Secretary
General, the members of the Security Council, and the members
of the General Assembly fully informed about problems,
deficiencies, and the necessity for, and progress of,
corrective action;
(5) the United Nations has established measures to protect
the identity of, and to prevent reprisals against, any staff
member making a complaint or disclosing information to, or
cooperating in any investigation or inspection by the Office
of the Inspector General; and
(6) the United Nations has enacted procedures to ensure
compliance with the recommendations of the Inspector General.
(c) Definition.--For purposes of this section, the term
``United Nations operations'' includes any program, project
or activity conducted or supported, in whole or in part, by
the United Nations or any of its specialized agencies.
Mr. PRESSLER. Mr. President, this amendment is cosponsored by my
colleagues, Senator Byrd, Senator Helms, Senator Dole, Senator Stevens,
Senator Domenici, Senator Lott, Senator Burns, and Senator Conrad,
among others.
The broad cosponsorship from across the political spectrum, I think,
indicates the interest in management reform in the United Nations. This
amendment requires that beginning in fiscal year 1994, 10 percent of
our assessed contributions to nonpeacekeeping operations for
the United Nations be withheld until the President certifies that the
United Nations has established a permanent, independent inspector
general as well as a system for review of internal audits by member
nations.
If, in 1995, the President cannot certify that an independent
inspector general has been established or that a system for review of
internal audits has not been established by fiscal year 1995, 50
percent of our assessed contributions to nonpeacekeeping operations of
the United Nations will be withheld.
Mr. President, there has been much discussion ranging from a piece on
``60 Minutes'' to several articles about corruption and mismanagement
in the United Nations. The United Nations seems unable or unwilling to
reform itself. Our taxpayers are asking very hard questions about why
it is that supplies that are sent to a point in Africa or Asia
disappear overnight and we are told they are stolen and the next day
they turn up on the black market. It has also happened in Yugoslavia.
The system of management and controls is out of hand. The United
Nations needs an inspector general, a real inspector general, an
independent inspector general, someone who can check up, do the audits,
and punish people within the system. There is no such system presently.
I have described the amendment. It is quite simple. It seems the only
way we can get the attention of the United Nations is by threatening to
do some withholding of funds, but also we have the attention of our
taxpayers on this issue because of the large amount of press and other
information that has been made available.
This is a tough amendment. I am sure many of my colleagues will
agree. Some may say too tough. But it is necessary. It is necessary if
this Congress finally is to take a stand against the rampant waste,
fraud, abuse, and outright thievery that takes place at the United
Nations.
The season premiere of the television newsmagazine ``60 Minutes,''
last fall, led off with a scathing report on the U.N.'s runaway gravy
train. This report is only the most visible example of the growing
worldwide media and public interest in U.N. mismanagement. In the past
year alone, I have talked with journalists in this country, as well as
reporters from England, Germany, and Japan. U.N. mismanagement is a
page 1 story. It is about time.
In roughly 13 minutes, ``60 Minutes'' documented what I have known
for years: The United Nations suffers from serious financial
irresponsibility. We have learned that the U.N.'s peacekeeping
operation in Cambodia has been a diplomat's dream, but an auditor's
nightmare. Consider the following:
When awarding contracts for helicopters, the United Nations shunned
cost effective bids in favor of more expensive, but preferred clients;
Scores of vehicles and equipment were bought but never used;
U.N. vehicles and equipment were stolen by the Cambodian Government--
only to resurface on the open market;
Water purification systems were purchased, but didn't work;
U.N. auditors recommended the dismissal of two U.N. personnel for
misconduct, but no action has been taken against them; and
The United Nations ``inadvertently'' purchased 850 minibuses that
were never needed for the operation--a waste of $10 million.
The examples I have described demonstrate that U.N. management is
seriously out of control. Yet, according to the former U.N. Under
Secretary General for Administration and Management, Melissa Wells,
confidential internal audits of the U.N. operation in Cambodia have
uncovered far more abuses beyond those I have just cited. Think of that
for a moment--as disturbing as the examples I have described are, the
chief management officer at the United Nations said we have only
exposed the tip of the iceberg.
Incidentally, Melissa Wells was forced out of her position recently
by none other than U.N. Secretary General Boutros Boutros-Ghali and his
staff. Melissa Wells was the highest ranking American official at the
United Nations. The position of under-secretary general for
administration and management has oversight over efforts to reform the
United Nation's inefficient bureaucracy, and responsibility for
security, contracts, and support services for peacekeeping operations.
Her removal hampers the reform effort. And it exemplified the
unwillingness of the leadership at the United Nations to deal with
reform.
Mr. President, I think we should also say that the previous holder of
a high post, Governor Dick Thornburgh, of Pennsylvania, was at the
United Nations. After a year, he was forced out but he did a report and
he himself has testified that his report was shredded at the United
Nations. It has pointed out many of the mismanagement things and he has
put that on the official record.
So it seems to me that we have a very serious problem here. We have
been working on it every year before the Foreign Relations Committee.
We get assurances that our State Department is going to be tougher up
there in insisting on this. They sort of brush us off, take the money,
and do the same thing. It goes on year after year after year. So with
this amendment, finally we are getting to some teeth. Finally we are
trying to actually do something about it.
This country is the largest donor to the United Nations.
If we threaten to withhold funds--I think we have a right to do that
if some changes are not done--then we will accomplish our goal. The
fact is, even President Clinton was not allowed to view any of the
United Nations' confidential internal audits.
Why? Because, the United Nations prohibits representatives of member
countries from doing so. Think of that, the United States--the single
largest contributor to the United Nations--is not allowed to see how
its money is being managed, or in this case, mismanaged. Mr. President,
that must change.
The ``60 Minutes'' team pointed out other examples of U.N.
mismanagement in New York. Mike Wallace uncovered evidence that the
United Nations was publishing reports of events years after the fact.
For example, a 1986 human rights report was not published until 1992.
Mr. Wallace also found that the U.N. Public Information Office could do
without 700 of its 1,000 employees if cost-effective automation were
instituted. Yet, no U.N. official has the authority to effect any
reorganization plan that results in the reduction of U.N. personnel,
regardless of how much time and money it would save. Mr. President,
this too must change.
Consideration is one of the many reforms sorely needed in the United
Nations. Melissa Wells' predecessor, former Attorney General Richard
Thornburgh, wrote a blistering report of the U.N. management fiasco.
Was the Thornburgh report welcomed? No. In fact, the only notable U.N.
element that tore through the Thornburgh report was the U.N. paper
shredder.
Mr. Thornburgh found numerous U.N. bureaus, commissions, and agencies
with overlapping or duplicated functions. For example, there are three
different U.N. offices in Rome dealing exclusively with food. There are
reports of unauthorized staff--U.N.
``deskwarmers.'' There are reports of retired
U.N. personnel who are hired back as consultants and receive a
consulting fee as well as their full pension. Recently, the Secretary
General created a new position for a special representative to manage
the U.N.'s golden anniversary next year. This position and salary--
approximately $140,000 per year net of taxes--were never approved by
the General Assembly. Mr. President, again, that must change.
The United Nations has no system to monitor cash flow. No U.N.
official could tell us how many people are on the U.N. payroll. It is
reasonable to assume the personnel levels are above the amount
authorized by the U.N. General Assembly.
Despite--or perhaps because--it spends as if it possessed a
bottomless well of wealth, the United Nations leadership claims it is
in a financial crisis. Should we and other member nations come to aid
the United Nations in this crisis? Absolutely. But future funds should
come at a price--the price of reform. It is time for the United Nations
to implement management, accounting, and personnel reforms.
The United Nations can do plenty to save money. Its administrative
operations can be streamlined. Unauthorized staff and those found to
have engaged in practices of waste, fraud, or abuse should be
dismissed. Duplicate or unnecessary bureaus, agencies, or offices can
be eliminated. In short, the United Nations can tighten its belt a few
notches and channel those savings into needed programs.
Regrettably, the United Nations seems prepared to trade in its belt
for an elastic waistband. The Secretary General's United Nations
operating budget for 1994-95 calls for an 11-percent increase over the
current year, including a 20-percent increase in travel expenses. This
it the United Nations normal operating budget. It does not include the
budget for peacekeeping. Both the operating budget's amount and the
growth rate exceed the levels authorized by the 47th General Assembly.
As a result, the United States is required by law to withhold 20
percent of funds appropriated for our assessed U.N. contributions.
Just to be fair, the United Nations has proposed several measures
aimed at coping with its cash flow problem. However, these so-called
economy measures are reductions in services that amount to savings of
no more than $5 million per year--a very meager amount for an
institution that spends $10 million per day. Further, the Secretary
General has pledged that any reorganization would not result in the
reduction of U.N. personnel. Is this reform? Not even close.
So, Mr. President, the Secretary General has made a commitment that
whatever they do up there they are not going to reduce U.N. personnel
regardless of what. He made that promise. I think that is unfair to our
taxpayers.
Finally, Mr. President, I have serious concerns that we have allowed
our financial obligations to the United Nations to be increased
fraudulently. Let me explain. Under its own rules, the United Nations
operates a separate fund to finance administrative costs in direct
support of peacekeeping activities. These funds are included as part of
the U.N.'s peacekeeping budget. The United States is obligated to pay
31.7 percent of the U.N. peacekeeping budget, compared to our
obligation to pay 25 percent of the regular budget. Last fall, the
Secretary General submitted a proposal for the General Assembly to
allocate an additional $32 million for administrative costs for
peacekeeping. At that time, I learned that most of the proposed
expenditures have nothing to do with peacekeeping. In fact, I wrote to
our representative to the United Nations, Madeleine Albright, urging
her to look into this matter. Surprisingly, in light of all of this
information, the State Department has endorsed the United Nations'
supplemental budget request, which amazes me.
Mr. President, this matter has far reaching implications. I have no
doubt the U.N. supplemental budget fiasco could lead to a larger effort
to shift regular budget expenses to peacekeeping. This would force the
United States to pay 31.7 percent of U.N. costs rather than the 25
percent regular budget assessment. Thus, the U.N. leadership is pulling
a fast one on the American taxpayer by artificially inflating our
financial obligations to the United Nations. Mr. President, that kind
of magician's management must be stopped.
I believe my point has been made. The United Nations is the world's
policeman, but it has neither the resources nor the will to police
itself. The United Nations is home to the world's most distinguished
diplomats, but it needs an undiplomatic, distinguished, tough-minded
inspector general to clean up the United Nations' financial house.
That is the bottom line. The United Nations is in need of reform now.
The United Nations can start by establishing a permanent, independent
inspector general. I understand the U.N. leadership does not find tough
fiscal management very exciting. U.N. personnel are there to
participate in the grand world of diplomacy, not the mundane world of
balance sheets. I fear the repercussions if we continue to allow the
United Nations to turn its back on sound management practices. I fear
that once the American taxpayer learns what is going on in the United
Nations, the credibility of and support for the United Nations will
suffer. We must do something about it.
I am here to do something about it because I support the United
Nations. I twice served as a delegate to the United Nations from this
Senate.
As a young person, I belonged to the Minnehaha County U.N.
Association in South Dakota. I believe we must make the United Nations
work and I have worked on this problem for years. Even in committee,
every year the Ambassador who comes forward always promises they are
going to work hard on this issue. I have been up and met with Boutros-
Ghali. I met with Dick Thornburgh after his report was shredded. I have
been plugging away at this problem for a long time. I regret offering
an amendment of this sort, but it is the only way we are going to get
anything done, and that is the truth of the matter.
I served on the U.S. Commission to Improve the Effectiveness of the
United Nations, along with my good friend from Rhode Island, the
chairman of the Senate Foreign Relations Committee. Though the
Commissioners had differing opinions on many subjects, the entire
Commission strongly believed the United Nations needed a tough,
independent inspector general.
The United Nations represents one of our Nation's most sound, cost-
effective foreign policy investments. Let me make one point very, very
clear: My problem is not with the United Nations as an institution. My
problem is with U.N. leadership. In fact, my frustration would not be
so strong if I did not believe in the United Nations itself.
There have been recent attempts to withhold funds from the United
Nations to achieve reform. The fiscal year 1994 Department of State
appropriations bill includes report language calling for the
withholding of 10 percent of assessed nonpeacekeeping contributions
until an inspector general is established. I commend my good friend
from New Mexico, Senator Domenici, for leading that effort. It is an
important step. In fact, my amendment would write that report language
into law.
I want to commend Pete Domenici for the great work he has done on
this. He has been a leader on the Appropriations Committee, and this is
written into the Appropriations Committee law. For people listening to
this who are confused why we are doing the authorization after the
appropriations, it indicates the need for reform in the Senate, but
that is my opinion. That is a technical matter. I do commend Senator
Domenici for having that written into the appropriations law.
Frankly, I am not optimistic that withholding 10 percent of our
assessed contributions--roughly $50 million--will compel the United
Nations leadership to take action. We already withhold an amount that
exceeds $44 million annually in order to achieve relatively minor
administrative reforms. Some things did happen under the Kassebaum
amendments of the past. These current withholdings have not had the
desired effect.
We need to be prepared that the United Nations will not take action
during the current fiscal year. If reforms are achieved, we need to be
prepared to hold the United Nations to them. We need to be prepared to
be even tougher.
That is what my amendment would do. My amendment would require that,
beginning in fiscal year 1994, 10 percent of our assessed
nonpeacekeeping contributions to the United Nations be withheld until
the President certifies that an independent office of inspector general
is established and in operation. If, in 1995, the President is unable
to certify the establishment of an independent inspector general, the
withholding will increase to 50 percent of our assessed nonpeacekeeping
contributions. This is not just one certification requirement. It is an
annual certification that would begin on the first day of the next
fiscal year.
Some will argue that we are making political hay of the United
Nations. Some have stated the U.S. Government is full of waste, fraud
and abuse, and Congress should not be pointing fingers at the United
Nations. Yes, waste occurs in our Government. The difference is we have
independent inspectors general to investigate fraud, and recommend
punishment of wrongdoers. U.S. attorneys can indict any one of us here
in Congress for violating the law. They have done so. Not one U.N.
official has that kind of authority. When asked by Mike Wallace when
the last time a U.N. employee was fired for fraudulent or illegal
activities, the United Nations chief management officer could not
answer the question.
Some also will argue this amendment would hurt very needy programs
and projects within the United Nations. I disagree. The United Nations
is being hurt now. Every dollar that is wasted, embezzled, or stolen is
a dollar taken away from projects or programs in the United Nations
that work. It is about time we withhold a significant portion of those
funds until we know they will be put to good, sound use. If we pass
this amendment, all the United Nations has to do to receive its full
assessed contributions from the United States is to get its house in
order.
With my amendment, the reform ball will be in the United Nations
court. That is where it should be. Let us pass them the ball by
agreeing on this amendment.
Some also will claim the United Nations is cleaning up its act. Some
may point to last summer's appointment by the United Nations of a so-
called inspector general. If any of my colleagues believe this is true
reform, I have some monuments for sale here in town real cheap. I urge
my colleague to take a look at the fine print on this so-called
inspector general. The office is only temporary. It is not independent.
It uses the same resources that have failed to accomplish management
reform. And to top it off, the person appointed to fill this so-called
inspector general position is a two-decade veteran of the runaway U.N.
gravy train and is a friend of the Secretary General.
Is this reform? Hardly. This is window dressing. It is a feeble
attempt to assuage the concerns and silence the critic in the United
States.
Mr. President, it is very unfortunate that I have to stand here today
and recommend we take punitive action. I do not enjoy doing this. I am
here because we have little choice. The U.N. leadership refuses to take
seriously our requests for a tough inspector general with teeth. We
have tried diplomacy. We have tired friendly persuasion. My friends,
the United Nations is paying little, if any, attention to its largest
contributor. Our words have received little notice. If the Senate
passes my amendment today, the U.N. leadership will sit up and take
notice. It is about time that the single largest contributor to the
United Nations exercise its ultimate leverage.
Yes, Mr. President, it has come to that. Our obligations to the
United Nations will continue to grow. The United Nations
responsibilities will continue to grow. The United Nations
responsibilities will continue to grow. It is time for the United
States to take a step back and insist the United Nations police itself
with the same vigor and commitment it applies when it polices the
world.
I urge my colleagues to adopt the amendment.
(Mrs. BOXER assumed the chair.)
Mr. PRESSLER. Madam President, let me summarize and conclude by
saying that, based on my experience serving as a delegate to the United
Nations twice, in New York, we have and have had a very serious
attitude problem with waste, fraud and abuse, and there definitely is a
culture within the United Nations of waste, fraud and abuse. Many
countries in this world look upon participation in the United Nations
as an opportunity to make some money. Frankly, there are many countries
in this world that are autocracies. They are also stealing from their
own people.
But the situation has reached a point in the United Nations where our
taxpayers and our press and our citizens are in an uproar. We do,
however, want the United Nations to succeed. Indeed, as I have said, I
have devoted many years of work to U.N. activities. This amendment will
make the United Nations better. It has teeth in it. It has already been
adopted in the appropriations language, as the Domenici amendment.
It is very important that the Senate vote for this amendment. I am
proud to say we have bipartisan leadership on both sides of the aisle.
I hope that this amendment is adopted.
Mr. BYRD. Madam President, I commend the Senator from South Dakota
for his leadership on this issue. The Senator is on exactly the right
track with his efforts. The United Nations needs the oversight of its
budget and programs that would be provided by an office of inspector
general. As the Senator will recall, when he offered a similar
amendment to the foreign operations appropriations bill last year I
indicated my support for his initiative, but I wanted to wait for
consideration of the State Department authorization bill which is now
before the Senate. This bill includes authorization for the general
assessment for overall U.N. funding and I thought it would be
preferable to attach such an amendment to that funding rather than the
voluntary contributions for the specialized agencies contained in the
foreign operations bill. The Senator from South Dakota graciously
agreed to withhold his amendment and I thank him. I can now fully
support this very important effort to encourage the United Nations to
create an independent, effective inspector general.
As the post-Cold War international order continues to evolve, the
United Nations has begun to assume a much more activist role in world
affairs. Across a broad range of issues, but most importantly with
respect to humanitarian relief and peacekeeping, the nations of the
world increasingly have tried to use the United Nations as a mechanism
for coordinated multilateral action. Unfortunately, the current U.N.
bureaucracy is the product of more than four decades of cold war
gridlock, with the world's superpowers treating the United Nations as
little more than an arena for nations to blow off steam, and not as an
organization to be trusted with any real responsibilities.
The neglect of the United Nations during the Cold War has produced
what Richard Thornburgh, former U.S. Attorney General and U.N.
Undersecretary General for Administration, described as an antiquated
management structure, with budgeting practices that are almost surreal.
He is only one of a chorus of voices calling for reform of U.N.
management, budgeting and oversight. In fact, it is nearly impossible
to find someone familiar with the functioning of the United Nations
that does not recognize the need for dramatic restructuring and reform.
Despite the seriousness of the situation, it is obvious that the
system will not be reformed from within. Too much dead wood has become
too entrenched over too long a period of time, and inefficiency has
become self-perpetuating. The August 1993 announcement of the
appointment of a new Assistant Secretary General for Inspections and
Investigations was encouraging, but it falls short of what is needed in
the area of oversight. Undersecretary Thornburgh wrote that the United
Nations is ``almost totally lacking in effective means to deal with
fraud, waste and abuse by staff members.'' The new Assistant Secretary
General will only exist for 1 year, will have limited resources, very
little stature, and no increase in current authority. This does not
begin to address the problem.
Unfortunately, even this modest attempt at reform has now been
overshadowed by the firing of Melissa Wells, the United Nations
official in charge of reform efforts. Ms. Wells had succeeded Richard
Thornburgh as the Undersecretary General for Administration and was the
highest ranking American at the United Nations. She was dismissed even
though the Washington Post of January 18, 1994 reported that the United
States mission to the United Nations thought that she was moving too
slowly in the direction of reform. If that is the case then it is even
more troubling that Secretary General Boutros-Ghali and the United
Nations bureaucracy found her efforts to be too intrusive.
The United Nations desperately needs true oversight in the form of an
office of inspector general with all the attributes normally associated
with such a position. Undersecretary Thornburgh had suggested creating
this office as the centerpiece of his U.N. reform proposal. More
recently, the United States mission to the United Nations, under the
leadership of Ambassador Madeleine Albright, has tried, without
success, to prod the United Nations into creating this office. If the
United Nations has any hope of fulfilling a more activist role in world
affairs it must first have the full support of its membership,
including the United States. Providing adequate review and oversight
through an inspector general would represent an important first step to
putting a very messy house in order at the United Nations, and the
United States, as its largest contributor, should insist on at least
this most basic reform.
Mr. PRESSLER. Madam President, I would be happy to have a stacked
vote. I might ask my colleague from Massachusetts if he prefers that
this vote be stacked. Would it be appropriate to ask for the yeas and
nays at this point?
Mr. KERRY. Madam President, we agreed previously to temporarily set
this aside. Senator Glenn, I believe, is going to speak for a few
moments, and subsequent to that Senator Helms will propose a separate
amendment, and there will be some debate on that. I say to my
colleague, it may be that we will wind up accepting this amendment, and
I would like to have a discussion with him on it. There is great merit
to much of what he has said, and we have debated this and discussed
this within the committee. I have worked with him on this issue. He has
been a stalwart advocate of reform within the United Nations. But there
are some problems we see in this amendment. It may be possible to work
them out.
Madam President, I ask unanimous consent that after the statement of
the Senator from Ohio [Mr. Glenn], the amendment be temporarily set
aside and subsequently we proceed to the amendment of the Senator from
North Carolina.
The PRESIDING OFFICER. Is there objection?
Mr. PRESSLER. Reserving the right to object, and I will not object, I
hope we can get back to this amendment, perhaps hold a vote on the two
amendments stacked after that. Would that be agreeable?
Mr. KERRY. It would be agreeable, providing we can have an agreement
as to subsequent business. There is a luncheon, I understand, that may
take some Members away. We need to be working during that time. So if
we can have an agreement as to an amendment to proceed on during that
time, I would be happy to stack. In the absence of an agreement to
proceed forward, we would have to simply vote and continue as we go.
Mr. GLENN addressed the Chair.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. GLENN. Madam President, I wish to make very short remarks.
First, I should like to congratulate my colleague from South Dakota
for his work in this particular area. It is an area which has
interested me for many years also, one about which I talked to some of
the people at the United Nations In fact, during the past break I
planned to go to New York sometime to go over this matter with some
officials at the United Nations
The Senator has taken very forceful action here, and we may want to
approve this later. I do not know.
At the United Nations we are beginning to be more active. The United
Nations is more active in more events around the world that require
more military activity by more countries than ever before, and yet
support for the United Nations is not going to long endure or expand in
all this increased functioning they are doing around the world if the
people around the world who support the United Nations, primarily the
United States as the biggest contributor, do not have faith that the
money is being spent wisely, is being monitored, and is going to the
purpose for which intended.
So the distinguished Senator from South Dakota points out a very real
problem. I have discussed some of the proposals for an IG at the United
Nations with some of the people up there. I did that because I have had
some experience here. The IG legislation goes through my Governmental
Affairs Committee, the committee I chair. I supported it years ago. And
then it was my legislation which expanded the inspectors general just a
few years ago. They are doing a great job within our own Government,
doing a superb job, as a matter of fact, in ferreting out fraud, waste,
and abuse in our own Government and, I think, eventually could do the
same thing in the United Nations
There is only one place I would part company a little bit with my
colleague from South Dakota. I understand his frustration, but I am a
little hesitant about cutting off funds. I would like to first perhaps
go with him in maybe a delegation to the United Nations and sit down
with the appropriate people up there and outline how IG's are working
within our own Government, how they could work at the United Nations
and how this is going to be absolutely necessary if we are going to
have the support of the U.S. Government and the citizens of the United
States into the future. This is going to be absolutely necessary. I
think an IG at the United Nations absolutely has to be put into place,
and it cannot just report to its own people. It has to report to the
member governments so we will have faith in what that IG is doing and
faith that the United Nations is being run as efficiently as possible.
So I support the objectives of my colleague from South Dakota. I hope
perhaps we could set up such a visit to the United Nations with
representatives from appropriate committees in the Senate and maybe
convince them to accept this so we do not have to really go through a
cutoff of funds. I would hate to see us go that route.
So I am very much in support of what the Senator is doing and want to
support him and hope we can work together on this.
I thank the Chair.
Mr. KERRY addressed the Chair.
The PRESIDING OFFICER. If the Senator will withhold, without
objection amendment No. 1253 is laid aside.
Mr. PRESSLER. Reserving the right to object, as I understand it, we
will get a vote on my amendment.
Mr. KERRY. Madam President, in answer again I said to the Senator
that it may be possible we will not need to have a record vote. We may
be able to voice vote and accept it.
Mr. PRESSLER. I would like to have a vote on it. I would like to show
a clear vote because I think the Senate feels very strongly about this.
I would like to get an agreement here that we will go forward to a
vote. I am not causing any controversy. I am not prolonging the
discussion. I have a vast number of cosponsors on both sides of the
aisle. I think we can move this amendment very quickly, but I do not
want to alter it. It is not my intention to make any changes.
We are ready to go. I am trying to speed things up.
Mr. KERRY. Madam President, the Senator obviously has the right to
ask for the yeas and nays on his amendment any time he wants. So I am
not trying to prevent him, obviously, from something I cannot prevent
him from doing. I am simply suggesting that there may be a way to
diminish the amount of time we spend on this amendment, the amount of
debate that is necessary. So if the Senator would agree to at least
temporarily set aside--it is already set aside, as a matter of fact. I
would simply ask him to reserve the request on a vote at this moment
until we have had time to converse, but he obviously is entitled to
have a vote on this at any time he wants.
Mr. HELMS. As one of the two managers of the bill, I am prepared to
assure the Senator from South Dakota that his amendment will not be
passed on a voice vote in his absence. I am sure the Senator from
Massachusetts feels the same way.
Mr. KERRY. I would make the same----
Mr. PRESSLER. What I am trying to do here is speed things up. We are
trying to get this bill going. We are trying to get Senators to the
floor.
Mr. KERRY. Let me say to the Senator from South Dakota, nobody wants
to speed this up more than I do. We have about 70 amendments filed. The
majority leader has made it clear that the issue of whether or not we
are here Friday is dependent on our ability to finish this bill by
tomorrow night.
If we do not finish this bill by tomorrow night, the majority leader
has made it clear we will be here until late on Friday working on this
bill.
So I want to move the amendments. One of the efforts to move the
amendments is predicated on diminishing the areas of contention by
trying to work them out together so we do not have a prolonged debate
on an amendment if it is not necessary. I simply would like to see,
with my friend from South Dakota, if we can avoid contention on this
amendment, in which case it might pass very quickly with a record vote
or otherwise.
But let us spend a minute trying to do that if we can.
The PRESIDING OFFICER. Is there further objection? Without objection,
the amendment is laid aside.
Mr. KERRY. I say to my colleagues, I repeat this entreaty on behalf
of the majority leader, we have proceeded fairly rapidly through some
noncontentious amendments and they have been accepted by voice vote. We
are prepared to move very rapidly with the other amendments if we can
work them out. But those colleagues who have filed amendments should
come to the floor now so that we can proceed to work and, hopefully,
finish this bill by tomorrow night precluding the necessity of
everybody being here Friday.
I believe now, Madam President, that the Senator from North Carolina
has an amendment.
Mr. HELMS addressed the Chair.
The PRESIDING OFFICER. The Senator from North Carolina, [Mr. Helms].
Amendment No. 1254
(Purpose: To strike all language in Section 170A relating to support
for an international criminal court)
Mr. HELMS. Madam President, I send an amendment to the desk and I ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from North Carolina [Mr. Helms] proposes an
amendment numbered 1254.
At the appropriate place, strike section 170A in its
entirety.
Mr. HELMS. Madam President, I thank the Chair for recognizing me.
Madam President, in all candor, the International Criminal Court is a
very unwise and very dangerous proposal.
Yesterday, I alluded to one of the truly great Senators who served in
this body, the late great Senator Sam J. Ervin, Jr. I am looking at the
desk that he occupied as I speak.
I had the privilege of serving as Senator Ervin's junior colleague
for the first 2 years that I was in the Senate. I have never spent two
more enjoyable or meaningful years than those 2 years. He was a great
American. He was a great constitutional scholar. And he was respected
throughout this land.
He constantly warned, on this floor and off, to be wary of turning
over the sovereignty of the United States in the slightest degree to a
world court or any other tribunal by any other name. He was eloquent
every time this matter was mentioned.
So here we are proposing to do something that I know, if I may use
the expression, is causing Sam Ervin to spin in his grave because he
would say today, if he were here, what I am about to say; that is, that
what is at stake is a proposed total reversal of longstanding U.S.
policy against encouraging the establishment of a permanent
international criminal court to try individuals, potentially including
American citizens, for such vague crimes as ``colonialism,'' or
``environmental crimes.'' These crimes and these cases would be tried
before judges who could be from North Korea, Cuba, or other unfriendly
places.
But the principle is that we must protect the sovereignty of this
country and the rights of American citizens. Otherwise, we ought to
give up professing to be an American institution called the U. S.
Senate.
I daresay I do not take to the likes of nations like North Korea or
Cuba sitting in judgment upon the United States of America or any
citizen thereof.
I have laid down the predicate.
Now I specifically reject the view expressed at the subcommittee
markup that this, after all, is just sense-of-the-Senate language. If a
sense of the Senate does not mean anything, let us stop doing it.
The Foreign Relations Committee adopts a number of such positions
every year. I, as a rule, respect them because to me a sense-of-the-
Senate resolution means what it says. If we do not mean for it to mean
anything, I say again we ought to stop doing it.
I know that my good friend from New York, the distinguished Senator,
Mr. Moynihan, respects the Burma resolution that he and I collaborated
on. And from time to time Senator Biden and I have written a few
resolutions regarding China issues.
Let me say again that back in 1973 I had the privilege of serving
with an authority on this subject. I pay tribute to Sam Ervin again
because in my judgment, and in the judgment of millions of other
Americans, he was one of the wisest men who ever sat in this Senate.
And if there is anything that I have learned from him, it is to never,
never agree to turn our precious constitutional guarantees of liberty
and justice over to any sort of world court by any name.
With regard to this vague, open-ended concept that is a part of this
bill, it is difficult to begin to point out all of its flaws and all of
its problems, potential and otherwise. At the subcommittee hearing on
May 12 of last year, the Hon. Edwin Williamson, the former legal
adviser to the State Department, identified nine separate legal and
practical issues which must be resolved before an international court
could go forward.
Every one of those nine major issues raised by Mr. Williamson, such
as the methods of selecting judges and other personnel, contains
separate sub-issues which are significant in their own right. In
October 1993, after being pushed and pulled by several prominent
Senators and urged enthusiastically to endorse the concept of a
criminal court, the State Department legal adviser could only muster
faint praise for the concept. You can almost see that club over his
head when he did that.
Speaking before the U.N. General Assembly's 6th committee regarding a
68 article draft international criminal court statute, legal adviser
Harper said--and these are his words:
In general, although the underlying ideas must be
appropriately resolved, the concept of an international court
is an important one, and one in which we have a significant
and positive interest.
What Mr. Harper went on to say in the most diplomatic terms was that
this concept has such serious shortcomings. Mr. Harper stated strong
reservations about the jurisdiction of the court, which is precisely
what Sam Ervin stood here and said time and time again. Mr. Harper had
great concern about the removal of national cases to the international
forum. He expressed significant concerns over ``how an international
jurisdiction would relate to existing status of forces argument
prosecution of war crimes and other military matters.'' Those are his
words. So what he was saying is that our basic national security and
defense relationship may be in jeopardy, and who wants to take a chance
on that? Last, but certainly not least, the Clinton administration's
legal advisor stated:
``We note that the current draft's provision for immediate
arrest and surrender of an offender may be inconsistent with
requirements for a judicial hearing that are for the United
States, and likely other states as well, a matter of
constitutional dimension.''
What an understatement. He is absolutely right. What does that
statement, however, mean in the United Nations legalese? The answer is
simple--that it is in our Constitution. There is even a real concern
that the U.S. standards for due process are not met. So you are running
into that brick wall up in New York.
There are three major and immediate issues. Who would sit in
judgment? Who? What constitutes an international crime? And then, of
course, what constitutional questions are raised? Since there is not a
formal proposal for a permanent international criminal court, we have
to look at current practice and the various academic proposals.
In his May 3 report to the Security Council on a proposed war crimes
tribunal for Bosnia, the Secretary-General indicated that judges would
come from member states of the U.N. and permanent observer missions.
Well, just to begin with, every country on the United States' terrorism
list would be eligible under that, including Iran, Iraq, Syria, Libya,
Cuba, and North Korea. Every one of them is a member state of the
United Nations. And based on what the Secretary-General said, they
would be eligible to provide the judges to judge actions of the U.S.
Government or U.S. citizens. I do not know about other Senators, but I
am not willing to trust the sovereignty or the liberties of the
American people to anybody from any of those countries.
That very real possibility was confirmed to me by a leading academic
proponent of an international criminal court, Professor Bassiouni of
DePaul University. As the record will show, this past May 12, a
subcommittee of the Foreign Relations Committee conducted a hearing on
this question, and I asked the professor if judges from Communist
China, Iran, Syria, or the PLO could sit in judgment of the United
States Government, or one or more American citizens. In all honesty, he
said, ``There is no guarantee'' that that will not happen. Of course,
there is not. So what are we walking into?
In a sense of the Senate, we either mean what we say or we ought not
to toy around with things like that.
Moving on to the question of what constitutes an international crime,
the situation gets even muddier. We do not even know whether the
subject matter jurisdiction of the court has been framed appropriately
or what is meant by the words ``crimes under general international
law.'' What are we to make of the meaning of the words ``colonialism''
or ``intervention,'' both of which are endorsed by the International
Law Commission which is, of course, a U.N. agency?
The State Department authorization bill before us contains, in
section 702, explicit recognition that Tibet is not a part of China.
This is the amendment of the distinguished Senator from New York, Mr.
Moynihan, and I enthusiastically endorse it. But does that make both
Pat Moynihan and Jesse Helms guilty of intervention? What about
environmental crimes, as proposed by the leading academic on this
subject, or insults to a foreign state? If that means Iraq or Libya, I
plead guilty. They would haul me off in chains, I suppose, before some
international tribunal, with somebody from Cuba and somebody from Red
China and somebody from Libya, sitting in judgment on the rest of the
world.
Finally, and most importantly, there is the question of our--the
United States of America's--guarantees. This is not the first time we
have looked at this issue. In 1991, section 599(e) of the Foreign
Operations Act, which is Public Law 101-513, directed the United States
to ``explore the need for the establishment of an international
criminal court report on the results of efforts to establish an
international criminal court.''
And in an October 28, 1991 letter to House Speaker Foley, Mr. L.
Ralph Mecham, Director of the Administrative Office of the U.S. Courts,
responded to the congressional reporting requirement. Mr. Mecham
pointed out that trial by jury is fundamental to our system under
article III of the U.S. Constitution. Yet, none of the draft statutes
for an international criminal court provides for a jury trial in even
the most serious crimes.
Mr. Mecham also points to a question of a speedy trial, and the
concept of the international criminal court is in direct conflict with
the most basic constitutional rights guaranteed by the U.S.
Constitution to all American citizens.
So, Madam President, do you see, as they say in North Carolina, why I
am so ``het up'' about this matter? Sam Ervin taught me to become
heated about it. He is gone, but I told him in one of the last
conversations I had that I would stand against this as long as I had
breath. And I am going to do it. The Senate may vote in opposition to
my position, but the Senate I believe will rue the day that the Senate
takes that action.
But the problem does not end with conflicts with the most basic
constitutional rights of American citizens. One of the international
crimes being discussed in the literature--now get this--is
dissemination of false or distorted news. I could just see the rolling
paddy wagons up to the Washington Post, New York Times, CBS, NBC, and
taking all the reporters out. I can think of several media sources that
could not pass the most liberal interpretation of that little standard.
So, in summary, I guess it is safe to say that it is my view that the
very concept of an international criminal court is fatally flawed.
First and foremost, this scheme is a constitutionally impermissible
assault on the basic liberties enjoyed up to now by the American
people.
Second, as I have already noted, there is nothing to prevent people
representing terrorist countries or representatives of terrorist
organizations from sitting in judgment against this country of ours and
the American people.
And, lastly, the list of international crimes being discussed is
unconstitutionally vague and is absolutely wide open, inviting abuse.
We do not want that.
This is not the vehicle to pronounce the fatal wounding of our basic
constitutional guarantees. I would think the Judiciary Committee might
want to review the constitutional impact of these efforts. I would hope
the Senate would hear from the Judiciary Committee before acting.
Senate Joint Resolution 32 is almost identical to the language found in
section 170A of S. 1281. Yet, this independent legislation has not made
its way to a hearing by, in and among the Judiciary Committee members.
Nor has the Senate scheduled floor consideration of this legislation.
Either the international criminal court does affect our constitutional
guarantees and is deserving of a thorough review or it has little, if
any, impact and is unnecessary of enactment.
I urge my colleagues to support the amendment to strike this section
from the bill.
Madam President, I thank you for having recognized me, and I yield
the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. Madam President, I rise in opposition to the amendment
being offered by our distinguished colleague from North Carolina.
Let me say at the very outset that this debate is really not about a
specific treaty or agreement at all. As the Senator from North Carolina
has very candidly said, he is opposed in concept to the notion of an
international criminal court. So there is no configuration of any such
court which he could ever accept.
There are those of us who believe that the concept of an
international criminal court makes sense, but we are very cautious to
reserve any judgment on what that court may constitute until we are
offered such a proposal. We have not been offered such a proposal.
What we have before us today in this particular piece of legislation
is the simple expression of a sense of this body that, conceptually,
the idea of an international criminal court makes sense. We do not
endorse any particular proposal for such a court but merely state our
opinion that it ought to be pursued.
I would like, if I could, just to state for my colleagues what the
resolution says, and I am going to read the operative language of this
provision in its entirety. It is very brief. But I think my colleagues
ought to know what they are voting on here. I will read it verbatim:
It is the sense of the Congress that: (1) the establishment
of an international criminal court with jurisdiction over
crimes of an international character would greatly strengthen
the international rule of law; (2) such a court would thereby
serve the interests of the United States and the
international community; and (3) the United States delegation
should make every effort to advance this proposal at the
United Nations.
That is the entire sum and substance. If conceptually you align
yourself with Senator Helms, the senior Senator from North Carolina,
and conceptually the notion of any international court is abhorrent to
you, then you ought to vote for the amendment of the Senator of North
Carolina. If you believe that it is worthy to examine the issue of an
international criminal court, then clearly his amendment ought to be
rejected. I will lay out the arguments why I believe that is such.
Madam President, one of the hallmarks of a civilized society is that
it holds its citizens accountable for crimes against the public order.
With the end of the Second World War and the success of the Nuremberg
and Tokyo trials, many people in this country and elsewhere believed
that this bedrock principle would soon hold true for the international
community as well.
I point out that my father, a former Member of this body, served as
the executive trial counsel for the United States prosecution team at
those Nuremberg trials. So I have more than just a passing familiarity
with those tribunals and the important role they played in bringing to
justice those people who were guilty of significant war crimes.
It was possible to envision at the end of World War II a world in
which the rule of law would be supreme, where international agreements
would be reached by debate and consent, and where violators would be
met by a swift and certain punishment.
This vision was shaken by the onset of the cold war and the sudden
emergence of a bipolar world. Today, from Angola to Iraq, from Haiti to
the former Yugoslavia, despots and tyrants thumb their noses at the
rule of law. It is not that the international community is unable to
agree on what defines a crime, or even, in most cases, who is breaking
the law. But the world still lacks a dependable and effective mechanism
for bringing these individuals before the bar of justice.
Today, just as we did after the Second World War, we stand at the
beginning of a new era in history. We have an opportunity that comes
along only once or twice in a century, a chance to shape a vision of
the future that accords with our highest aspirations of freedom and
human dignity. And the first of our many priorities should be to deal
with those who would tarnish that future, who would subvert its promise
for their own self-serving ends.
It was in this spirit that 12 months ago I introduced Senate Joint
Resolution 32, to put the Congress on record in support of the
establishment of a permanent international criminal court. I introduced
this legislation because I felt that if the new international order was
to have any real meaning at all, it must include some provision for
punishing or otherwise sanctioning those who failed to abide by its
rules. The operative language of this legislation--and I have read it
to my colleagues in this Chamber--is very clear. It does not bind us to
any particular proposal. It merely says, do you think this is worth
doing? Do you see it as being in the interest of the United States,
which has had a longstanding commitment to the rule of law, to try to
adopt those basic principles on an international level?
I believe it does. The legislation, I would point out, also requires
that the administration submit to Congress a detailed report ``on
developments relating to, and United States efforts in support of, the
establishment of an international criminal court with jurisdiction over
crimes of an international character.''
Well, obviously, there is no list of crimes before us yet. There is
no proposed jurisdiction. The suggestions that Senator Helms, our
colleague, makes are nothing more than that; merely suggestions. The
crimes that some have advanced, many of them are absolutely ridiculous
and should never be a part of any international criminal court. But
that is all they have been, the ideas of some people.
You are not voting on those crimes. You are not voting on that
jurisdiction today. All you are being asked to do is accept or reject
the concept, the idea, of an international criminal court. That is the
issue before us; only the concept.
Is it in our interest to advance that idea or should this body, the
U.S. Senate, go on record today saying never, ever, ever; that, in
concept, fundamentally the notion of an international criminal court is
abhorrent to this body and we will prevent any idea like that from ever
being adopted? That is the issue and only that issue.
I think this body believes that international criminal courts makes
sense. Here we are in the midst of this debate advancing the idea of an
ad hoc tribunal on Bosnia. We all watch, every night, the television
screen and we see the covers of our newspapers and magazines. It is
abhorrent to us that innocent civilians are being gunned down by the
ruthless terrorists of the Serbians and others. We are incensed by it.
And so we support an international criminal court on an ad hoc basis to
deal with it. What I am suggesting is, does it not make some sense to
maybe deal with this in a more substantive way rather than on an ad hoc
basis?
Madam President, I was greatly pleased at the level of support this
measure has received from our colleagues. I would note the presence on
the floor of my colleague from Pennsylvania, Senator Specter, who has
been at this as long as I have; in fact, longer. And while we discussed
the various ideas and concepts, he testified before our committee on
May 12, along with other witnesses, about this general concept and
general idea.
This legislation was also cosponsored by the distinguished majority
leader, Senator Mitchell; the chairman of the Foreign Relations
Committee, Senator Pell; Senator Kerry, my colleague from
Massachusetts, who is managing this legislation; Senator Kennedy;
Senator Moseley-Braun; Senator Reid; Senator Boxer, the Presiding
Officer today; and Senator Feingold.
Last year, Madam President, S.J. Res. 32 was given thorough
consideration by the Committee on Foreign Relations. A hearing on the
legislation was held, as I said, on May 12, in which the committee took
testimony from witnesses in support of and opposed to the concept. The
legislation was marked up by the committee and passed on a vote of 11
to 7, and was later accompanied, Madam President, by a 236-page report
that we have prepared on this concept. I would invite my colleagues'
attention to that. In this report we provide all the pros and cons and
the arguments and the history. It is a significant and very thorough
examination of this issue. We have not treated it lightly at all.
Finally, Madam President, the language in S.J. Res. 32 was debated
once more in the Subcommittee on International Operations on June 29
when the subcommittee voted to add it as an amendment to the State
Department authorization bill. That is the language we are considering
today.
Madam President, let me turn to a discussion of some concrete
examples which, in my view, demonstrate the need for an international
criminal court.
Perhaps the most obvious example is in the area of war crimes and
crimes against humanity. As my colleagues know, it took a great deal of
time and effort to establish the ad hoc tribunal for the former
Yugoslavia. As a result, valuable time was lost in the gathering of
evidence and in the preparation of cases. Had a standing tribunal
already been in place, the chances of a successful prosecution would no
doubt have been greatly increased.
Make no mistake about it, Madam President, there will be more
Yugoslavias, and there will be other atrocities committed in the
future. It is happening right now in Haiti, in Angola, in Burundi, just
to name a few. If we should decide in the future to call these
individuals to account for their crimes, logic only dictates that we
will need the services of a permanent international criminal tribunal.
Even in cases where we are unable to get our hands on the alleged
criminal, an international criminal court would provide us with a forum
to at least secure an indictment, perhaps even a conviction in
absentia, to forever brand that individual a criminal in the eyes of
the world. Most importantly, Madam President, since the court would
operate on the basis of established and agreed-upon procedures, no one
could argue that a prosecution was being carried out for political
purposes, or that it represented a victor's vengeance.
Another area in which an international criminal court would prove
useful, in my view, is in the fight against drug trafficking and
terrorism. One might consider, for instance, the difficulty we often
have in prosecuting drug lords from certain countries in Latin America
and the Caribbean.
In a sense, these nations are in a double bind: On the one hand, they
often find it difficult to bring cases against the suspected drug lords
themselves because of violence directed against the judicial system in
their own country. On the other hand, they find it impossible to
extradite them to the United States because of political resentment
back at home. An international criminal court, if properly structured,
could provide an important third option.
As for terrorism, it is often said that one man's terrorist is
another man's freedom fighter. And yet the international community has
managed to come to an agreement on a certain array of crimes that are
clearly unacceptable no matter what the context, such as the taking of
hostages, the hijacking of a civilian airliner, or attacks on diplomats
and other internationally protected persons. In these cases, an
international criminal court could play an important and useful role.
One notable recent example is the 1985 terrorist attack on the
Achille Lauro, which resulted in the tragic death of an American
citizen, Leon Klinghoffer. Egypt captured the suspects in this case,
but then, bowing to domestic political pressure, put them on a plane to
Tunis to be tried before the Palestine Liberation Organization. The
United States intercepted the jet and diverted it to Italy, but Italy
refused to turn over the suspects. Italy then let the mastermind of the
attack go free for alleged lack of evidence and convicted several other
persons for sentences ranging from 6 months to 30 years.
When all was said and done, the United States was angry at Italy for
what it viewed as insignificant sentences for the terrorists, Egypt was
angry at the United States for intercepting its airline, and the United
States was angry at Egypt for not prosecuting the suspects in the first
place. All in all, the interests of everyone involved would have been
better served by recourse to a neutral tribunal.
Finally, Madam President, there are a host of other circumstances in
which, for practical reasons, an international criminal court might
facilitate the prosecution of alleged offenders. These would include
cases where evidence is located in two or more countries; where there
is a disagreement between nations over the appropriate punishment to be
meted out, such as the death penalty; where victims are found in two or
more nations; and where no extradition treaty exists between the
requesting country and the country with possession of the alleged
offender.
Madam President, in the time I have remaining, I would like to
briefly give my colleagues some sense of the growing measure of support
for this proposal, both here at home and throughout the international
community.
Here in the United States, the issue of an international criminal
court has gained the attention of the American Bar Association, which
endorsed the concept at its 1992 annual meeting. The ABA has also
appointed a blue ribbon task force, led by former Attorney General
Benjamin R. Civiletti, to examine a number of questions surrounding the
proposal.
I might point out our colleague from North Carolina has raised some
of these questions. He asked exactly the right questions, in my view.
But to be opposed in concept fundamentally before even examining those
issues, I think is where he is making his mistake.
The final report, I would point out, from the ABA task force was
completed on January 11 of this year, and it contains a number of
recommendations as to the proposed court's jurisdiction and scope.
In addition, the concept was also endorsed by the majority of the
members of the U.S. Commission on Improving the Effectiveness of the
United Nations, a bipartisan task force that reported to the Congress
in September 1993.
At the United Nations, the U.N.'s International Law Commission has
been examining the issue of the international criminal court for the
past 4 years. Last year, in its most visible sign of progress yet, the
ILC put forth a 67-article draft statute for such a court. While
elements of that statute have been criticized by some, most observers
agree that the draft statute represented an important step forward in
the deliberations at the United Nations. This past November, the
General Assembly voted to request the ILC to complete its work on the
draft statute at its 1994 session.
Among member states at the United Nations, support for an
International Criminal Court is also growing. United States allies and
other international partners that have indicated their support for the
concept in recent debate at the United Nations include Germany, Russia,
Canada, Spain, Poland, Hungary, Nicaragua, Mexico, and Australia, among
many others.
Finally, as for the United States, the administration's official
position is also evolving. In 1992, at the United Nations, the Bush
administration sent State Department legal adviser Edwin D. Williamson
to the United Nations to argue that a delay in the consideration of the
proposal would be acceptable, and to say only that the United States
was not necessarily opposed to the concept. Last year, under the
Clinton administration, legal adviser Conrad K. Harper told the United
Nations that ``My Government has decided to take a fresh look at the
establishment of such a court.''
In fact, Mr. President, the Clinton administration is indeed taking a
fresh look at this issue, and it is my strong hope that it will
conclude that this is a concept to which it can lend its clear
endorsement. The legislation that we are considering today is merely
intended to encourage the administration in that direction.
Mr. President, I ask unanimous consent to have printed at this point
in the Record an assortment of items that lend support to the concept
of the International Criminal Court. These include the following:
newspaper editorials in support of the International Criminal Court
from the New York Times and the Hartford Courant; an excerpt from the
final report of the ABA Task Force on an International Criminal Court;
an excerpt from the final report of the United States Commission on
Improving the Effectiveness of the United Nations, and a list of the
Commission members; the statement delivered by State Department legal
adviser Conrad K. Harper at the United Nations last fall; excerpts from
statements made last year before the Foreign Relations Committee by
Secretary of State Warren Christopher and U.N. Ambassador Madeleine
Albright on this subject; and a copy of a recent article by Benjamin
Ferencz, a former chief prosecutor at Nuremberg, calling for the
establishment of a permanent court.
In addition, Mr. President, I would also like to include at this
point several other letters that I have received from members of the
academic community that indicate their support for the concept of the
International Criminal Court. Several of these scholars took the
opportunity to offer comments on certain portions of the ILC's draft
statute and I would ask unanimous consent that these be made a part of
the record as well.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, July 6, 1993]
A Court for International Outlaws
How to deal with a person like Gen. Mohammed Farah Aidid,
the Somali, warlord who orders attacks on United Nations
peacekeepers and uses women and children as shields for the
killers?
Under whose jurisdiction could he be prosecuted? There is
no functional civil government in Somalia. Even if U.N.
soldiers could arrest him, what would they do with him after
that? Convene a war crimes tribunal, as is being done now to
try the ethnic cleansers in the Balkans? That idea summons up
the daunting prospect of establishing ad hoc tribunals in
every corner of the world where civil law breaks down.
There is a better way: establish a permanent international
criminal court to try people who flout globally recognized
standards of behavior. The World Court in The Hague deals
with disputes between governments, but there is no comparable
body to judge individuals.
The need is obvious. In Colombia, leaders of the big drug
cartels are so powerful that they can order the murder of
judges, jury members, journalists and government officials
who try to thwart them. The crimes committed by terrorists,
hijackers and smugglers of drugs, wildlife and other
contraband know no national boundaries. And in small
conflicts all over the world (East Timor, for example),
people get away with murder because there's no way to bring
them to justice.
In January Senator Christoper Dodd, Democrat of
Connecticut, introduced a joint resolution in Congress
calling for the United States to support United Nations
efforts to establish such a court. Last fall the U.N.
Security Council unanimously requested that the International
Law Commission start to draw up the terms of such an
agreement.
There are obvious problems. What crimes should be covered,
and who would decide whom to prosecute? What if Saddam
Hussein tried to have George Bush arrested? How should the
requirements of different legal traditions be reconciled?
What rules of evidence would be used?
Some countries would see an international court as a threat
to their sovereignty. One way to get around this would be to
require an accused person's country to consent to
prosecution. But that would present its own problems. Would
Libya really surrender the suspected Pan Am bombers to such a
court? Colombia's powerful drug lords have already forced
their Government to abandon its extradition treaty with the
United States; they would surely try to make life miserable
for a government that consented to hand them over to an
international court.
These problems are real but surmountable. The U.N. is
already developing a powerful precedent as it sets up the
terms for the war crimes tribunal for the former Yugoslavia.
Another possible formula would be to limit the court's
jurisdiction to crimes, like slave trafficking and hijacking,
already covered by international conventions.
The Bush Administration's attitude toward such a court was
to list the inherent problems and wait until somebody else
ironed them out. The Clinton Administration has yet to take a
position. Mr. Clinton could give the international court a
significant nudge by throwing his weight behind the effort.
Unfortunately, there will always be outlaws like General
Aidid. The international community will continue to suffer as
long as there is no way to bring them to justice.
____
[From the Hartford Courant, Feb. 6, 1993]
Time for an International Court
If the authorities in Colombia ever recapture Pablo
Escobar, they'll be faced with a conundrum. The leader of the
Medellin cocaine cartel, Mr. Escobar is so powerful and so
ruthless that any judge, any juror, any policeman who came
into contact with him would be in danger of assassination.
His organization has casually executed journalists, judges,
politicians, even innocent tourists, to strike fear in its
opponents. The message is clear: Try to stop us and we will
kill you.
In such an atmosphere, bringing these murderers to justice
is almost impossible. The only alternative--extraditing drug
lords to the United States, where they are also wanted--
chafes at national pride and has become too risky for
political leaders.
Sen. Christopher J. Dodd of Connecticut has introduced a
joint resolution that points toward a possible solution to
the problem of prosecuting international criminals such as
Mr. Escobar. Mr. Dodd has called for creation of an
international criminal court to try individuals who violate
an agreed-upon set of standards.
The need for such a court is obvious. Each week news
stories reveal the limitations of law enforcement. As the
world shrinks, international crime increases. How to bring to
justice the pirates who prey on refugees on the high seas in
southeast Asia? The poachers of endangered species? Those who
flout environmental regulations and cause large-scale damage
to the earth? People who kidnap young girls to sell as wives
to wealthy men in other countries? Military commanders in the
Balkans who encourage rape and genocide?
In introducing the resolution, Mr. Dodd rightly harked back
to the Nuremberg trials, which set a precedent for
international scrutiny of crimes that went far beyond
violating the laws of an individual nation. He quoted former
Secretary of State Lawrence Eagleburger's vow to bring the
ethnic cleansers in the former Yugoslav republics to justice,
promising a ``second Nuremberg.''
The notion has been around for a while. In 1991, the United
Nations International Law Commission adopted a draft code of
international crimes. Under the Bush administration, U.S.
support for the notion was lukewarm.
Last year, after some pressure from other countries, the
United States relaxed its stance and the U.N. General
Assembly granted permission to begin work on drafting a
statute to set up an international court.
The United States has been reluctant in the past to support
such a move out of fear that U.S. citizens might be brought
before an international court. That is, indeed, a
possibility. As Americans, we should not fear it--any more
than we fear the rule of law in our own communities.
Mr. Dodd's resolution deserves the support of Congress, and
of the Clinton administration.
____
[The views expressed herein have not been approved by the House of
Delegates or the Board of Governors of the American Bar Association
and, accordingly, should not be construed as representing the policy of
the American Bar Association.]
American Bar Association Task Force on an International Criminal Court
final report
At the Annual Meeting of the American Bar Association, on
August 11-12, 1992, the House of Delegates adopted the
following recommendation, submitted by the ABA Task Force on
an International Criminal Court and by the New York State Bar
Association:
recommendation
Be it Resolved, that the American Bar Association
recommends that the U.S. Government work toward finding
solutions to the numerous important legal and practical
issues identified in the accompanying reports of the Task
Force on an International Criminal Court and the New York
State Bar Association, with a view toward the establishment
of an international criminal court, considering the following
principles and issues:
A. Jurisdiction of the court shall be concurrent with that
of member states. It may cover a range of well established
international crimes, but member states shall be free to
choose by filing a declaration of the crimes they shall
recognize as within the court's jurisdiction.
B. No person shall be tried before the court unless
jurisdiction has been conferred upon the court by the state
or states of which he is a national and by the state or
states in which the crime is alleged to have been committed.
C. The fundamental rights of an accused shall be protected
by appropriate provisions in the court's constituent
instruments and in its rules of evidence and criminal
procedure.
D. The obligations of states under the court's constituent
instruments shall be enforced by sanctions.
The report submitted with the recommendation by the Task
Force on an International Criminal Court identified and
discussed a number of legal and practical issues regarding
the establishment of an international criminal court.
Admittedly, however, the report was unable to explore all of
these issues in a thorough fashion, and it was understood at
the time of adoption of the recommendation that the Task
Force would continue its work in an effort to examine those
issues it previously had given little consideration to, such
as, for example, proceedings at trial. There was also general
agreement that the Task Force would benefit from the addition
of several new members.
Accordingly, at its meeting in September 1992, the ABA
Board of Governors approved the Annual Plan of the Task Force
and authorized the Task Force to accept external funding for
the purpose of continuing its operations during the 1992-1993
ABA Year. The new President of the ABA, Michael McWilliams,
appointed seven new members of the Task Force. These new
members are, in alphabetical order: Michael Abbell, Craig
Baab, Eric L. Chase, William M. Hannay, Louis B. Sohn and
Rebecca J. Westerfield.
The composition of the reconstituted Task Force, then, is
as follows. The chairperson is Benjamin R. Civiletti. The
other members of the Task Force are, in alphabetical order,
Michael Abbell, Donald B. Ayer, Craig Baab, Eric L. Chase,
Stuart H. Deming, Edward S.G. Dennis, Jr., Helen M.
Eversberg, Robert B. Fiske, Jr., William M. Hannay, Jerome J.
Shestack, Louis B. Sohn, Melvyn Tanenbaum, Michael E. Tigar,
Rebecca J. Westerfield, and Bruce Zagaris.
Professor John F. Murphy continues as reporter for the Task
Force.
After being reconstituted, the Task Force divided into
working groups on the following topics: (1) Jurisdiction,
Applicable Law, and Sentences, chaired by Professor Louis B.
Sohn; (2) Structure, Process, Procedure, and Rules, chaired
by Judge Melvyn Tanenbaum; and (3) Investigation, Charging,
Prosecution, and Incarceration, chaired by Michael Abbell.
These working groups exchanged views by letter and telephone
and also commented on discussion papers prepared by the
reporter.
The reconstituted Task Force as a whole held two meetings.
In addition to general discussion members of the Task Force
commented on drafts of this report by the reporter.
The Task Force also benefitted from the participation in
its meetings of Bruce C. Rashkow, Assistant Legal Adviser for
United Nations Affairs, and Michael P. Scharf, then Attorney/
Adviser, Office of the Legal Adviser, U.S. Department of
State, now Assistant Professor of Law, New England School of
Law. Ms. Jamison Borek, Deputy Legal Adviser, provided
helpful comments on a draft of this report, and the Office of
the Legal Adviser also kindly supplied the Task Force with
various documents relevant to an international criminal
court.
A special note of thanks and appreciation is due Alaire
Bretz Rieffel, staff liaison for the Task Force and Director,
ABA Section of International Law and Practice. Ms. Rieffel's
cheerful and efficient handling of numerous administrative
details associated with this project has been of great
assistance to the Task Force.
The expanded size of the Task Force has increased the
already substantial diversity of views represented on it.
Accordingly, it proved impossible to achieve agreement on all
the propositions set forth in this report. To the extent
possible, where there has been a sharp disagreement of view,
this has been noted in the report. Every effort has been made
to give a fair hearing to the full range of opinions.
Association with the report as a member of the Task Force
does not necessarily signify complete agreement in every
particular, but rather general agreement with the report's
substance.
This report should be read as a supplement to, as well as
an updating and expansion of, the Task Force's report that
accompanied the recommendation adopted by the House of
Delegates in August 1992. In order to assist the reader in
this endeavor a copy of the Task Force's first report has
been attached to this report as Appendix A.
As a supplement to the first report this report does not
reexamine the arguments for and against an international
criminal court. Also, as we shall see, these arguments have
largely been overtaken by recent developments. Rather, the
report begins with a brief examination of major developments
since the date of the first report. Next the report turns to
the issue of the court's subject matter and personal
jurisdiction and the law it should apply. The report then
explores, in separate sections, the nature and structure of
the court; its pre-trial and trial procedures; and the
enforcement of sanctions against persons convicted of crimes
within the court's jurisdiction.
____
[Final Report of the United States Commission on Improving the
Effectiveness of the United Nations]
Defining Purpose: The U.N. and the Health of Nations
international criminal court
In view of the transnational nature of modern criminal
conduct and the increasing interdependency of nations, the
Commission recommends creation of an International Criminal
Court (ICC) to hold accountable criminals who violate
specific international conventions. For any just
international order to become a reality, it must address
international and transnational criminality and demand the
cooperation of states to redress such crime. The system
proposed here, however, should be viewed not as a substitute
for but a complement to national criminal systems and other
modalities of bilateral and multilateral cooperation in penal
matters.
Various arguments have been raised against an ICC. Some
critics contend that it would hinder efforts to strengthen
existing extradition procedures, because countries would be
reluctant to allow extradition of suspected criminals to a
foreign country when they could be turned over to the ICC for
prosecution. The same argument, however, is also a persuasive
reason for the ICC.
Another argument is that a permanent ICC would become
politicized and lose its effectiveness. This danger exists in
any U.N. agency, but can be minimized by the way the court is
established and the procedures under which it operates. Still
another concern is that, given the diversity of nations and
legal systems in the world, it will be difficult, perhaps
impossible, to create a code of international laws, form a
court and establish rules of jurisdiction and procedure to
which all members will agree.
There will undoubtedly be problems in the creation and
implementation of a permanent International Criminal Court,
but the Commission believes that the potential benefits
outweigh the arguments against it. Successful prosecutions in
such a court would not only result in punishment for the
perpetrators, but would help deter behavior repulsive to the
international community.
A permanent International Criminal Court should be created
through a multilateral treaty to be written and ratified
under U.N. auspices. Its jurisdiction would proceed along two
tracks. On the first track, the Court would deal with
``international crimes,'' the most serious of which are the
product of state action or state policy, affect the peace and
security of humankind or are particularly offensive to basic
human values. These crimes are: Aggressive war, war crimes,
unlawful use of weapons, crimes against humanity, genocide,
apartheid, torture, unlawful human experimentation, slavery
and slave related practices.
On the second track, the Court would consider
``international delicts''--international misdemeanors that
offend human values but are not usually the product of state
action or policy and do not threaten the general peace and
security. They include: Piracy, aircraft hijacking and other
threats to international air safety, threat and use of force
against internationally protected persons, threats and
attacks upon international maritime navigation, the taking of
civilian hostages, drug offenses, destruction or theft of
national treasures, environmental damage, theft of nuclear
weapons and materials, and illegal forms of mercenarism.
The Commission recommends that, initially, the Court have
concurrent jurisdiction with national courts. It would
present a neutral alternative forum for the prosecution of
individuals accused of committing international crimes. Many
countries would be more likely to relinquish the prosecution
of an individual in their possession to an international body
than to a sovereign state. Some countries may also be more
willing to let the Court prosecute a suspected criminal than
to try him in their own courts.
There is considerable sentiment among U.N. members that
violations of humanitarian law, like war crimes, if not
prosecuted before national courts, should be tried before ad
hoc tribunals established by the Security Council rather than
a standing ICC. This is chiefly because the violations may be
the result of orders from the highest levels of government
and bringing the perpetrators to trial may require the
enforcement powers of the Security Council.
This is the course taken by the Security Council for
dealing with crimes in what used to be Yugoslavia. The
jurisdiction of the special tribunal being established is
limited to ``serious violations of international humanitarian
law committed in the territory of the former Yugoslavia
between 1 January 1991 and a date to be determined.''
Specifically, the crimes covered by the court's statute
include ``grave breaches of the Geneva Convention of 1949,''
``violations of the laws or customs of war,'' ``genocide''
and ``crimes against humanity.''
The Commission recognizes the arguments for ad hoc
tribunals, but believes that a permanent court is preferable,
because it would avoid the politicized process of
establishing an ad hoc tribunal for every criminal violation
of this kind.
____
[Statement by Hon. Conrad K. Harper, Legal Adviser, U.S. Department of
State and U.S. Representative to the 6th Committee 48th Session of the
United Nations General Assembly, Oct. 26, 1993]
Agenda Item 143: Report of the International Law Commission on the Work
of Its Forty-fifth Session International Criminal Court
Madam Chairman, as this is my first time addressing the
Committee, I wish to express my appreciation for the work of
the Committee and its officers. I am very pleased to be here
for the discussion of the work of the International Law
Commission (``ILC''), which is one of the most important
elements of the annual deliberations of the Committee.
My delegation commends the ILC for the valuable work it has
done in many fields, including its expeditious work on the
vital topic before us today. My delegation also wishes to
note with appreciation the excellent work done by the ILC's
working group. The working group's strong efforts have
produced a thoughtful and serious work product that deserves
attention by members states.
I am pleased to provide comments for my Government on the
question of the establishment of a permanent international
criminal court, and in particular the proposed statute
contained in the report of the International Law Commission
(A/48/10) and prepared by the ILC's working group over the
past year.
My Government is firmly committed to the fight against
transnational crime in all its forms. We have taken an active
role in all fora where proposals for international
cooperation in this area are debated and implemented. In
addition, we actively pursue bilateral and multilateral
relationships that underlie cooperation in the criminal
justice field, and have entered into numerous extradition
treaties as well as treaties on mutual legal assistance in
criminal matters. We have placed considerable emphasis on
international efforts to curtail drug trafficking, money
laundering, organized crime, and terrorism.
Last May, the Security Council created an Ad Hoc Tribunal
to address serious violations of international humanitarian
law in the former Yugoslavia. My Government is a major
proponent of this effort to ensure that those who have
committed such crimes are held personally responsible. This
Tribunal for Yugoslavia establishes a new and largely
untested mechanism--one that has gained wide-ranging support
in part because it was carefully tailored to meet the needs
of a specific situation. The same level of care must be taken
with other new mechanisms in the criminal justice field.
It is in this context of multilateral and bilateral
cooperation that this Committee considers the question of an
international criminal court. My Government has decided to
take a fresh look at the establishment of such a court. We
recognize that in certain instances egregious violations of
international law may go unpunished because of a lack of an
effective national forum for prosecution. We also recognize
that, although there are certain advantages to the
establishment of ad hoc tribunals, this process is time
consuming and may thus diminish the ability to act promptly
in investigating and prosecuting such offenses. In general,
although the underlying issues must be appropriately
resolved, the concept of an international criminal court
is an important one, and one in which we have a
significant and positive interest. This is a serious and
important effort which should be continued, and we intend
to be actively and constructively involved.
Madam Chairman, my Government continues to study the
concept of an international criminal court and the ILC
working group's proposal. While some of the issues are very
difficult and the review is not complete, we do have a number
of comments on aspects of the draft at this stage.
Ultimately, no proposal can gain the support of governments
if certain key issues are not satisfactorily resolved. I
believe that many member states may share our concerns, and
will agree that careful study is required.
Careful consideration needs to be given, for example, to
whether the subject matter jurisdiction of the court has been
framed appropriately. We are not yet convinced that the
general category of ``crime[s] under general international
law'' is sufficiently well-defined or accepted by the world
community that it could at this stage, form a basis for
jurisdiction of the criminal court. We will also need to
consider, for example, whether drug crimes and crimes by
terrorists are better handled by an international court than
by national courts. We will want to ensure that cases which
can be properly and adequately handled in national courts are
not removed unnecessarily to the international court. We also
have a concern over how international jurisdiction would
relate to existing status of forces agreements, the
prosecution of war crimes, and other military matters.
We also note that, under the current proposal, many states
which have a definite interest in a particular case have no
role in deciding whether the international criminal court or
national courts handle that case. Thus the state or states
where the crime took place, where the victims reside and the
state of nationality of the accused person might none of them
consent to a given prosecution, yet it might proceed. At this
point, we do not suggest that all states with any of these
various interests in a case must give consent, or otherwise
accept the jurisdiction of the court over the particular
crime, before a prosecution with proceed. Nonetheless, and in
view of the fact that there would always be the possibility
of cases initiated by the Security Council, we believe that
further review of this issue is warranted.
We also believe that there is a need to think through how
the international criminal court will affect existing
extradition relationships, whether according to treaty or
other legal mechanisms. The United States has, as we have
pointed out, put considerable energy into entering into
bilateral extradition treaties with numerous governments. The
arrangements for the proposed court should be in addition to,
and not frustrate the purposes of, those treaty
relationships. Thus, we should consider whether a request for
surrender of an accused person to the international criminal
court should really take precedence over a proper request for
extradition under an extradition treaty, or whether the court
should function more as a mechanism to be used when national
courts are unable or unwilling to act.
In this connection, we note that the current draft's
provision for immediate arrest and surrender of an offender
may be inconsistent with requirements for a judicial hearing
that are for the United States, and likely for other states
as well, a matter of constitutional dimension.
We will also want to ensure that the treaty is consistent
with international standards for due process and human
rights. The ILC working group has certainly taken these
concerns into account to a considerable extent. At the same
time, others may have further contributions to make on this
subject. We note, for example, that the current draft does
not make provision for a true ``appeal'' to a separate group
of appellate judges. The War Crimes Tribunal for Yugoslavia,
on the other hand, includes this very important feature. More
generally, given the extent to which the court's rules will
give definition to the principles of due process and human
rights, consideration should be given to drafting those rules
in conjunction with the statute.
Cognizant of the budgetary pressures on the United Nations
and other organizations, we believe that an international
criminal court will need to have an acceptable mechanism for
budgetary and administrative oversight.
Madam Chairman, we believe that it is critical for the
success of this endeavor that the court have the full support
of the world community. Any other course would run the danger
of undercutting cooperation in international criminal
matters. For this reason, it is essential that the
fundamental issues relating to such a court be satisfactorily
resolved.
Our review is continuing, and this is not a complete list
of our concerns. Nonetheless, we wanted member states to have
the benefit of our views. I wish to emphasize that my
Government is ready to work energetically with the members of
this Committee to examine the issues related to establishing
an international criminal court, and to work together to
resolve the relevant issues and concerns.
____
Establishment of an International Criminal Court
[Statement of Secretary of State Warren Christopher at a hearing before
the Foreign Relations Committee, January 13, 1993, an response to a
question by Senator Dodd]
On the establishment of an international criminal court:
``I think that it's a good time now, with the leadership at
the UN which is I think prepared to think new thoughts and
develop new ideas, to see if we can't find some permanent
mechanism rather than having to set up an ad hoc mechanism
each time.''
[Statement of UN Ambassador Madeleine Albright at a hearing before the
Foreign Relations Committee, January 21, 1993, in response to a
question by Senator Dodd]
``As far as I'm concerned there is [nothing] more important
than really strengthening the international rule of law, and
establishing a tribunal, which you discussed, which Secretary
Christopher also said. I think that part of the problem we
have now is that such a place does not exist. We have a hard
time trying to sort out where we would bring the war crimes--
where we would present them--and therefore, creating this
organization is very, very important.''
____
[From Constitution magazine, Fall 1993]
Needed: An International Criminal Court
(By Benjamin B. Ferencz)
After the genocide and inhumanity of World War II, the
United States took the lead in drawing the charter for the
International Military Tribunal at Nuremberg. The Nuremberg
principles, which provided the legal basis of the tribunal,
were affirmed by the United Nations in 1946 and made clear
that aggressive war and crimes against humanity would no
longer be tolerated.
In opening the Nuremberg tribunal, Justice Robert Jackson,
on leave from the U.S. Supreme Court to serve as chief
prosecutor for the United States, heralded the rule of law.
``That four great nations,'' he said, ``flushed with victory
and stung with injury stay the hand of vengeance and
voluntarily submit their captive enemies to the judgment of
the law is one of the most significant tributes that Power
ever has paid to Reason. . . . We must never forget that the
record on which we judge these defendants today is the record
on which history will judge us tomorrow.''
Yet, since Nuremberg there has been no international
criminal court to call international criminals to account.
And the crimes continue.
Iraq immediately comes to mind. The United Nations Security
Council, led by the United States, mobilized international
forces to repel aggression by Iraq against Kuwait. But
contrary to the Nuremberg doctrine that only the guilty
should be punished--after a fair trial and with evidence of
guilt beyond doubt--Iraq's civilian population has become the
main victim of both economic sanctions and missile attacks,
while its leader, allegedly responsible for every war crime
in the book, remains head of government. It is sadly ironic
that a great military victory won by brave young people
upholding American principles abroad should be followed by a
lack of legal courage on the part of political leaders back
home.
But perhaps change is at hand. In the former Yugoslavia,
``ethnic cleansing'' and mass rapes so outraged public
opinion that the Security Council ordered that evidence of
infringement of human rights in the Balkans be assembled. On
May 25, 1993, the council established an ``international
tribunal for the sole purpose of prosecuting persons
responsible for serious violations of international
humanitarian law committed in the territory of the former
Yugoslavia.'' While the ad hoc tribunal can deal only with
crimes committed after January 1, 1991, its creation may
be a stepping stone to a permanent court.
Setting up such a court would involve limiting sovereign
rights in a way that would certainly be familiar to
Americans: just as the 13 Colonies found it necessary to cede
many sovereign rights to a central government in 1787, so the
violent and interdependent global community of today is
beginning to learn that real sovereignty belongs to the
people and that no one should be allowed to get away with
murder.
Although the Constitution authorizes Congress to punish
``offenses against the law of nations,'' the question of
indicting a sovereign before an international court did not
arise until after World War I. A 15-member Commission on
Responsibility of the Authors of the War, chaired by
secretary of State Robert Lansing, reached the conclusion
that violations of the ``laws and customs of war or the laws
of humanity'' were criminal offenses for which even a chief
of state could be punished. But almost immediately after
signing it, defeated Germany began to resist the Treaty of
Versailles on the grounds that it was a diktat that it had
been forced to accept. The Kaiser had already escaped to
neutral Holland, and Germany refused to hand over any of its
nationals for trial by an Allied court.
In 1920 a Committee of Jurists appointed by the League of
Nations and dominated by Elihu Root, a former U.S. secretary
of both war and state and a senator from New York, proposed
that an international criminal court be established ``to try
crimes constituting a breach of international public order or
against the universal law of nations.'' The advice of these
expert jurists was politely brushed aside by professional
diplomats. Sovereign states were not ready to yield authority
to a permanent international tribunal, even after World War
II when the U.N. was founded.
Although the United Nations charter requires that peace be
maintained ``in conformity was the principles of justice and
international law,'' the U.N. has no legislative authority,
its World Court lacks compulsory jurisdiction, and there is
no effective system to enforce world law. But the end of the
cold war has given us an opportunity to create a mechanism
that would allow the U.N. to begin to carry our its charter
goals. The absence of an international criminal court of law
to punish offenders mocks the victims of war and inhumanity
and encourages more criminality. All who imperil humanity
must know that they will be held to personal account,
regardless of rank, station or nationality. As Telford
Taylor, who served as U.S. chief of counsel at Nuremberg, has
written, ``The laws of war are not a one-away street.'' Law
poses no threat to the innocent. A permanent international
criminal court with worldwide jurisdiction would close a gap
that now exists in the world legal order; it is long overdue
and would uphold America's finest moral traditions in
protecting peace and human dignity.
____
Rutgers,
School of Criminal Justice,
Newark, NJ, September 9, 1993.
Hon. Christopher J. Dodd,
U.S. Senate, Washington, DC.
Dear Senator Dodd: Thank you for your letter of August 30,
transmitting the report of the International Law Commission
(A/CN. 4.L 490) Add. 1, and inviting me to provide you with
my comments.
As both an academician, who published the first American
coursebook on International Criminal Law (1965), and as a
practitioner in the field, as Director of the United Nations
Crime Prevention and Criminal Justice Branch (1974-1982), I
have been keenly interested in the creation of the
International Criminal Court and, from time to time, had
occasion to work with agencies responsible for the current
draft. It is a great relief that the I.L.C. has concluded its
work which, at times, it seem incapable or unwilling to
accomplish. Moreover, the Draft Statute looks very good
indeed. While here and there I would have structured it
somewhat differently, the draft is wholly acceptable to me.
To any critic it should be pointed out that the most
crucial provision is Article 32, which creates the Indictment
Chamber (analogous to a Grand Jury), composed of the Bureau
of the Court. This is a vast improvement over other drafts,
which did not envisage an indictment chamber. Yet, such a
body is absolutely necessary since it establishes by a high
standard of proof (prima facie case) whether the case should
move to trial. This is a judicial determination of acts and
therefore differs vastly from a mere prosecutorial accusation
that may be regarded as politically motivated. The objective
affirmation of the indictment by the indictment chamber
warrants an arrest. Now, it is very likely that, for the time
being, the Court may not be able to obtain jurisdiction over
the person indicted, but indictment and warrant of arrest
serve as a powerful restraint on the accused who may not be
able to venture out into the world for fear of an arrest and
trial. Defendants may be able to hide from the reach of
international criminal justice for a while. Most can
ultimately be reached. True, some may never be brought before
the International Criminal Court--instead ultimately dying
the death of an indicted international criminal.
In sum, the Draft Statute for an International Criminal
Court is solid and practical. It will derive to the benefit
of the World Community and of our country, which cannot solve
the problems of crimes against the peace and security of
mankind by itself.
All good wishes for your important work in the Senate,
Respectfully yours,
G.O.W. Mueller,
J.D., LL.M., Dr. jur. (h.c.),
Distinguished Professor of Criminal Justice.
____
University of Houston, Law Center,
Houston, TX, November 15, 1993.
Hon. Christopher J. Dodd,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Dodd: Thank you very much for your letter of
October 28th and the opportunity to comment on the U.N. Draft
Statute for an International Criminal Tribunal (19 July
1993).\1\
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\1\U.N. Doc. A/CN.4/L.490 (19 July 1993)
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First, I applaud the considerable efforts of the Working
Group and other members of the International Law Commission
and all those who made contributions to such efforts. The
Draft Statute is remarkable for its relatively lucid and
thorough consideration of the important issues to be
addressed before final adoption of a Statute for the
Tribunal. Already, it is remarkable as a working draft,
nearly complete in several respects.
Second, with a few minor changes, I assume that this draft
will have the support of nearly all international law
professors in the United States. Here, I merely provide a set
of preliminary remarks that hopefully will be of use to those
involved in the creation of a final document and in United
States adherence to the final instrument. There are a few
changes that should be made in the interest of independence
of the Procuracy and the Court as well as in the overall
interest of the international community in effective
enforcement of international criminal laws. Once again there
is genocide in Europe, and it is especially appropriate to
keep the criminal events in the former Yugoslavia in mind as
we contemplate the fine-tuning of an instrument for the
creation of a permanent International Criminal Tribunal. In
particular, there is a difficulty with the present draft of
Article 24(b), as explained in comments that follow.
Similarly, no state should be allowed to control the ability
of the International Tribunal to prosecute on behalf of
humankind a crime under customary international law over
which there is universal jurisdiction, especially a crime
such as genocide which is not only prohibited under customary
international law (see U.N. Commentary, at p. 29, paras. (3)-
(4)) but is also a prohibition under customary jus cogens
(and, thus, a peremptory prohibition--see, e.g., Restatement
(Third) of the Foreign Relations Law of the United States
Sec. 702(a) and Comments d and n (1987)).
In the following paragraphs, I address particular articles
in the Draft Statute, identifying some concerns and needed
changes. With respect to Article 6, it is important that
judges and prosecutors have at least a working knowledge of
international law. It would be most useful for States to
allow private organizations concerned with international law,
such as the International Law Association or the American
Society of International Law to have input concerning state
nominations.
With respect to Articles 9, 13(3) and 17(2)-(3), in my
opinion Judges and Prosecutors should be full-time so that no
conflict arises in terms of their prior employment or other
commitments. Judges should be available on short notice if
they are not sitting full-time. This also seems critical for
a full guarantee of the rights of the accused.
Article 19 must be amended to assure that: ``(d) in no
event may the rules adopted deprive an accused or other
person of any of the human rights to due process addressed in
Article 44 or otherwise developed under customary
international law.'' The language here is merely suggested
language, but the point must be assured in order fully to
guarantee the rights of those suspect of having committed
crimes, the accused, and possibly other persons not yet
suspects or accused.
With respect to Articles 30 and 44, the rights of witnesses
should also be assured--for example, rights related to those
of the accused in Article 44, paras. (f)-(g).
Article 22 should be amended to cover the 1907 Hague
Convention No. IV (recognized as customary laws of war at
Nuremberg over which there is universal jurisdiction). This
is addressed somewhat in the U.N. Commentary at p. 29. Here,
I also agree with the U.N. Commentary at p. 23 concerning the
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment and urge that this crime
also be listed. Additionally, there is a problem with respect
to some of the treaties listed in Article 22, in particular,
those listed in paras. (c)-(h). It is likely that these are
not yet customary international law (over which there is
universal jurisdiction) but merely binding among the treaty
signatories and their nationals (the so-called ``universal by
treaty'' circumstance allowing jurisdiction with respect to
signatory nationals). In view of this point, it may be
desirable to change Article 24(1)(a) by deleting ``under the
relevant treaty.'' It is, of course, true that a state does
not have jurisdiction under a relevant treaty or in any other
respect in connection with a non-customary offense allegedly
committed by a national of a state that is not a signatory to
such treaty, but the deletion would solve any ambiguity here.
Also, subparagraph (b) of Article 24(1) should be deleted.
Jurisdiction over genocide and related crimes exists with
every state since the prohibition of genocide and related
crimes, as defined by the Genocide Convention, has now
become customary jus cogens, as noted above. It is most
inappropriate, therefore, to limit submission under
Article 24 to those states that have ratified the
Convention (and whose ratifications are not void ab initio
as a matter of international law because their attempted
ratifications are fundamentally inconsistent with the
object and purpose of the Genocide Convention). Clearly,
other states can (by ``special acceptance'' under Article
26) submit such criminal accused even if they are not a
signatory (see, e.g., Article 26 (2) (a)), and a state's
acceptance of the jurisdiction of the Tribunal to address
such crimes can occur after the commission of such crimes
and not violate notions of ex post facto or nullum crimen
sine jus (since the crime already exists as such under
customary international law), but there should be no room
for escape of criminal liability for those reasonably
accused of having committed genocide or related crimes
against humanity.
In my opinion, paragraph (2) of Article 24 should be
deleted. There should be no such veto power of a state if
other states have a competence to submit the case for
prosecution. With this sort of clause, it may become unclear
whether the U.N. Security Council has the power to order
``extradition'' or ``surrender'' of such an accused under
Articles 39 and 103 of the Charter, as in the case of the
Lockerbie bombing. In this regard, what does ``on the
authority of the Security Council'' now mean under Article
25? Do Articles 24(2) and 25 reverse the decision of the
International Court of Justice?
Article 27 provides a veto power in the Security Council
with respect to one crime--aggression. This is understandable
politically, but logically inconsistent with a notion of an
independent prosecutor and an independent court. Also, the
crime of aggression should not be limited to aggression by a
``state,'' since civil-war belligerents can engage in
outlawed acts of aggression against other states and peoples.
Also inconsistent with the independence of prosecutors is the
``review'' procedure in Article 30(1) (see U.N. Commentary,
2nd part, at p. 6).
With respect to rights of suspects and those accused,
Article 30(4) needs supplementation in order to assure the
human rights of suspects of access to counsel, adequate time
and facilities to prepare, privacy during communications with
counsel, and to be questioned if the suspect wishes only with
counsel present. See, e.g., Paust, von Glahn & Woratsch,
Inquiry into the Israeli Military Court System in the
Occupied West Bank and Gaza (Report of the International
Commission of Jurists, Geneva 1989), reprinted in 14 Hastings
Int'l & Comp. L. Rev. 1 (1990), addressing also the U.N.
Supplemental Rules of Criminal Procedure of the U.N. Command
(Korea). In order to assure the accused minimum guarantees
under international law, a savings clause should be added to
Article 44 as new subparagraph (i): ``(i) any other minimum
guarantees under customary international law.'' First, these
minimum standards are not fully protected in the language
of Article 44. See also rights of the suspect addressed
above. Second, human rights to due process may develop
with the Ad Hoc Tribunal For Crimes Against Humanitarian
Law in the Former Yugoslavia and in other ways. Third,
when prosecuting violations of the Geneva Conventions,
there are circumstances when a signatory is bound to
accord an accused ``the same procedure as in the case of
members of the armed forces'' of such country. See, e.g.,
Geneva Convention Relative to the Treatment of Prisoners
of War, arts. 1 and 102. Since all signatories to the
Geneva Conventions must ``respect and . . . ensure respect
for'' the Conventions ``in all circumstances'' (id., art.
1; see also id., art. 131), how can a signatory send an
accused to or participate in the prosecution of an accused
with lesser standards? Fourth, there may well be standards
of due process common to the legal systems of the world
that partake of the nature of general principles of law
and which might influence the interpretation of custom or
the interpretation of relevant international agreements.
The Court should have the express power to recognize other
standards of human rights law or general principles of
law, and the accused should have an express right to any
minimum guarantees under customary international law.
Article 45 (1) and (2) should be changed to reflect the
fact that the 1966 Covenant on Civil and Political Rights,
and international law more generally, prohibits merely the
same ``offense'' being tried again, not ``acts constituting
crimes'' but the ``crimes'' themselves. This is particularly
so with respect to the fact that independent states are
independent sovereigns. The same is true in this country with
respect to federal and state crimes. Any ambiguity here can
be dealt with by simply deleting the phrase ``acts
constituting'' in each paragraph.
Article 64(2) should be deleted. It is fundamentally
inconsistent with the principle of independence of the
prosecutor, the independence of the Court, and the principle
of state responsibility under customary international law
with respect to international crimes over which there is
universal jurisdiction and responsibility. See generally,
Paust, Universality and the Responsibility to Enforce
International Criminal Law: No U.S. Sanctuary for Alleged
Nazi War Criminals, 11 Houston J. Int'l L. 337 (1989).
Several times before the United Nations entities have
affirmed that a refusal to cooperate in the arrest,
extradition, trial and punishment of persons accused of such
crimes is contrary to the United Nations Charter ``and to
generally recognized norms of international law.'' It simply
cannot be appropriate that evidence tendered should be
subject to the control of the state submitting such evidence.
Unlike prisoner-exchange agreements with respect to
ordinary foreign crimes, Article 66 seems to raise no
constitutional powers questions. The offenses are already
either treaty-based for the United States or part of
customary international law, both of which have
constitutional bases in Articles II, III and VI of the
United States Constitution as treaties or laws of the
United States. See, e.g., Restatement, supra, Sec. 111 and
Comments and Reporters' Notes thereto; Paust, Customary
International Law: Its Nature, Sources and Status as Law
of the United States, 12 Michigan J. Int'l L. 59, 77-90
(1990); cf. Paust, The Unconstitutional Detention of
Prisoner by the United States under the Exchange of
Prisoner Treaties, in International Aspects of Criminal
Law: Enforcing United States Law in the World Community
204 (Richard B. Lillich ed. 1981); Thomas M. Franck &
Michael J. Glennon, Foreign Relations and National
Security Law 312 (2 ed. 1993).
Finally, I thank you once again for the opportunity to
participate in this historical effort to create a Tribunal so
necessary for the effective enforcement of international
criminal law.
I will circulate this set of preliminary remarks to members
of the American Society of International Law's International
Criminal Law Interest Group for their comments. In this way,
perhaps we can provide further assistance at some time in the
near future. Of course, these comments are merely my own.
Also, I will send these to certain members of the executive
branch, the U.N. Secretariat, and others for comments.
Until later,
Warm regards,
Jordan J. Paust,
Professor of Law.
____
New England School of Law,
Boston, MA, September 25, 1993.
Hon. Christopher J. Dodd,
U.S. Senate, Washington, DC.
Dear Senator Dodd: In response to your letter, dated August
30, 1993, I am pleased to provide the enclosed comments on
the International Law Commission's draft statute for an
international criminal court for your submission in the
Congressional Record.
As you may know, from August 1989 to July 1993, I served as
the lawyer at the State Department with responsibility for
drafting the Department's reports to Congress and to the
United Nations on the issue of an international criminal
court, which expressed a degree of skepticism about the
feasibility and desirability establishing such a court. I
have been pleasantly surprised at how far the international
consideration of this issue has progressed since I wrote
``The Jury is Still Out on the Need for an International
Criminal Court,'' Duke Journal of Comparative and
International Law 135-168 (1991). As detailed in the enclosed
comments, I believe the International Law Commission's draft,
with some relatively minor revisions, can serve as the basis
for negotiation of a statute for an international criminal
court which should meet the major concerns of the United
States and other countries.
I applaud your efforts to persuade the Clinton
Administration to take the lead internationally in
establishing an international criminal court. I would be
happy to provide any further assistance to you in this
important endeavor.
Sincerely,
Michael P. Scharf,
Assistant Professor of Law.
____
Comments on the International Law Commission's Draft Statute for an
International Criminal Court
(By Michael P. Scharf)
I. Introduction
The recent establishment of the Yugoslavia War Crimes
Tribunal by the Security Council greatly enhances the
prospects for a permanent international criminal court (ICC).
Many of the complex legal and practical issues involved in
creating an ICC have now successfully been tackled in the
context of the Yugoslavia Tribunal. By borrowing liberally
from the Statute of the Yugoslavia Tribunal, the
International Law Commission (ILC) has come up with a draft
that provides a solid basis for negotiation of a statute for
an ICC that will be acceptable to a broad range of countries.
In particular, the draft's provisions for selecting judges,
commencing prosecutions, conducting trials, and enforcing
sentences are unlikely to engender much criticism. The
following comments focus exclusively on those areas in which
the draft should be revised to address the major concerns
that have been expressed in the past by the United States and
other countries.
In its May 1993 report to the U.N. pursuant to G.A.
Resolution 47/33, the Clinton Administration stated ``we
believe the basic approach advocated in the ILC's 1992 Report
(i.e., that the court be a flexible and supplementary
facility for States parties to its statute and that the Court
not have compulsory or exclusive jurisdiction) strikes a
proper and realistic balance between the many competing
interests at stake.'' As envisioned by the ILC's 1992 report,
the ICC would merely provide States, in whose territory a
person accused of an international offense is located, with a
third option to prosection or extradition. See 1992 Report of
the ILC Working Group on the question of an International
Criminal Jurisdiction at 15. An important aspect of the ILC's
approach is the bifurcation between becoming party to the
ICC's statute and accepting the ICC's jurisdiction over
particular offenses. As described by the ILC's 1992 report,
Parties to the ICC's Statute would select from a list of
international offenses those offenses for which they would be
bound to hand over suspects and provide other assistance to
the Court. Id.
The ILC's draft Statute has departed in several important
respects from this sensible approach, most notably with
respect to the obligations it imposes on States that are
Party to the Court's Statute but have not accepted the
Court's jurisdiction with respect to the type of offense
involved in a particular case. For example, under Article
33(2) of the draft Statute, such States are required to
ensure that the accused is arrested. Article 46 provides that
the Court has authority to ``require any person to give
evidence at trial,'' even if that person is a national of a
State that has not accepted the ICC's jurisdiction with
respect to the particular offense. The commentary to
Article 58 provides that Parties have a ``general
obligation to cooperate with and provide judicial
assistance'' to the Court, even in cases over which they
have not recognized the Court's jurisdiction. Article 45
requires Parties not to try the accused if he/she has been
acquitted or given a light sentence by the international
criminal court even for offenses over which the State has
not accepted the Court's jurisdiction. Article 63 provides
that Parties that have not accepted the Court's
jurisdiction over the type of offense at issue, must
prosecute the offender and forgoes the option of
extradition to a third State.
The comments below describe problems with the current
wording of several of the provisions contained in the ILC's
draft Statute and propose revisions to bring the statute in
line with the ILC's original proposal for an international
criminal court and to meet the important concerns that have
been expressed by the United States and other countries.
ii. comments on specific articles
Article 2
Article 2, which is in brackets to indicate that the ILC
seeks guidance on the issue from the General Assembly,
provides that the ICC shall either be a judicial organ of the
United Nations or that it be linked with the United Nations,
much in the same manner as the U.N.'s Specialized Agencies.
The latter approach is strongly preferable. It is not at all
clear that the General Assembly has the competence to create
an International Criminal Court without amendment to the U.N.
Charter and cooperation by States with the Court is more
likely if they became party by Treaty rather than by virtue
of their membership in the U.N.
Article 5
Pursuant to Article 5, the ICC would have three organs: a
trial court, a registry (administrative office) and a
Procuracy (office of prosecutor). Although defendants would
have the right to court-appointed counsel (Article 44), as
drafted the Statute does not establish a separate office of
Defense Counsel. It is important that the ICC have an
independent office of Defense Counsel to ensure adequate
representation of the accused and promote institutional
balance. The Office of Defense Counsel could develop an
expertise similar to that of the Procuracy, and would also
enhance the adversarial nature of the Court. Both the
Procuracy and Office of Defense Counsel would be able to
monitor their counterpart's interaction with the Court and
further ensure that the proceedings will be impartial.
In addition, in contrast to the Yugoslavia War Crimes
Tribunal, the ICC would not have a separate appellate
chamber, but rather appeals would be heard before a panel of
those trial court judges who did preside over the defendant's
trial (Articles 55 and 56). It is a fundamental principle of
U.S. jurisprudence that judges of the same rank should not
review each other's decision. This principle is also codified
in the Covenant on Civil and Political Rights, which provides
that ``everyone convicted of a crime shall have the right to
his conviction and sentence being reviewed by a higher
tribunal according to law.'' Consequently, the statute should
be revised to provide for the creation of a separate appeals
chamber in addition to a separate office of Defense Counsel.
Article 19
Article 19 provides that the Judges of the ICC will
promulgate the Court's rules of Evidence and Procedure. The
United States and other countries have expressed the position
that the rules of procedure and evidence are critical to the
acceptability of an ICC. The Tribunal has broad discretion to
adopt Rules that, for example, do not fully protect the
rights of the accused. The Nuremberg and Tokyo Tribunals have
been subject to criticism for their use of ex parte
affidavits against the accused at trial. Unlike the situation
of the Yugoslavia War Crimes Tribunal whose jurisdiction is
restricted to offenses committed in the territory of the
former Yugoslavia since 1991, few States would agree to
become party to the ICC's statute or consent to the Court's
more sweeping jurisdiction without first agreeing to the
Rules of Procedure and Evidence. The Rules developed for the
Yugoslavia War Crimes Tribunal can, with minor modification,
serve as the basis for the rules for the ICC. These rules
should be enumerated in an instrument to be adopted at the
same time as the ICC's Statute.
Article 21
Article 21 provides for a review conference to be held to
review the operation of the ICC's statute and to consider
possible additions to the list of crimes for which the ICC
has jurisdiction including ``in particular, the addition to
that list of the Code of Crimes against the Peace and
Security of Mankind.'' The Code of Crimes is like a bad penny
that continues to turn up in relation to the ICC. Many States
and commentators have strongly objected to the Code of
Crimes. As they have pointed out, the Code is redundant with
existing international conventions and would be disruptive of
these where it deviates from existing statements of the law.
Moreover, it fails to specify the state of mind necessary to
be charged with a criminal violation and neglects concepts of
due process basic to most countries' jurisprudence (e.g.,
that offenses must be defined with precision sufficient to
inform people of what acts will be considered criminal).
Consequently, the reference to the Code of Crimes should
be removed from Article 21.
Article 22
Article 22 contains a list of international offenses,
codified in Conventions containing the prosecute or extradite
requirement over which States can accept the ICC's
jurisdiction. The list is over-inclusive to the extent that
it includes the offense of ``apartheid,'' considering how far
South Africa has come in dismantling the vestiges of
apartheid. It is under-inclusive in that it does not include
torture as defined in the Torture Convention or major
narcotics crimes as defined in the Convention against Illicit
Traffic in Narcotic Drugs. The list should be revised
accordingly.
Article 24
Article 24(1) provides that the ICC has jurisdiction over
an offense if the ICC's jurisdiction has been accepted by a
State with jurisdiction under the relevant treaty to try the
suspect before its own courts. Article 24(2) provides that if
the suspect is present in the State of his nationality or the
State where the offense was committed, such State must also
consent before the ICC can exercise jurisdiction. However, if
the suspect is in a State that is not the State of the
suspect's nationality or the State where the offense
occurred, the ICC need not obtain the State's consent to
issue an indictment and arrest warrant and take other steps
to bring the suspect to trial before the ICC (See Articles
30, 31, 32, and 33). This ambitious provision goes well
beyond the role contemplated for an ICC in the ILC's 1992
Report. The primary need for an ICC was to provide a third
alternative to States which, for a variety of reasons, find
it difficult to prosecute or extradite a suspect (See 1992
Report of the ILC Working Group on the question of an
International Criminal Court at pp. 11-12). Consistent with
this, the consent of the State in which the suspect is
located, whether or not it is also the State of the suspect's
nationality or the State where the offense occurred, should
be required.
Article 25
Article 25, which provides the ICC with competence over
cases submitted by the Security Council is an important
provision. With the growing number of attacks against UN
Peace Keepers throughout the world (which constitute offenses
under the Internationally Protected Persons Convention), it
is likely that the Security Council will be a significant
source of the ICC's cases. As drafted, however, Article 25
unduly limits the power of the Security Counsel, acting under
Chapter VII of the Charter of the United Nations, to
prosecute such cases before the ICC. The Article should be
revised to explicitly exempt from Security Council
initiated cases the requirements of consent contained in
Article 24 as well as the ability of States that have not
accepted the ICC's jurisdiction over the act in question
to refuse to surrender suspects or provide judicial
assistance.
Article 26
Article 26 gives the ICC jurisdiction over other crimes
``under general international law'' and ``under national law
which give effect to provisions of a multilateral treaty,''
provided the State on whose territory the suspect is present
and the State on whose territory the crime occurred give
their consent. This provision is the most problematic of
those contained in the draft Statute. It would give the ICC
jurisdiction over uncodified, open-ended offenses that are
not defined with sufficient specificity and precision to
inform people of what acts will be considered criminal. It
would also give the ICC jurisdiction over offenses listed in
regional conventions and international conventions that are
not widely adhered to on the basis of their objectionable
subject matter. This Article should be omitted altogether
from the Statute.
Article 27
Article 27 provides that the ICC has jurisdiction over the
offense of aggression only if the Security Council has found
that the suspect's State has been guilty of aggression. The
term ``aggression'' is too political and ambiguous to be the
basis of individual criminal liability. The history of the
General Assembly's 1974 definition of aggression (G.A. Res.
3314, 29 GAOR Supp. 31 (A/9631) at 142) shows that it was
intended only as a political guide and not a binding criminal
definition. Together with Article 26, this Article should be
omitted from the Statute.
Article 33
Article 33(2) requires States Party to the ICC's statute
that have not accepted the Court's jurisdiction with respect
to the offense in question nevertheless to serve the
indictment on the accused and ensure that the accused is
arrested or detained. States that have not accepted the ICC's
jurisdiction with respect to the offense in question should
be under no further obligation to cooperate with the ICC than
States that are not party to the ICC's Statute.
Article 44
The commentary to Article 44 requests the General Assembly
to provide guidance to the ILC on the question of in absentia
trials. In accordance with the Covenant on Civil and
Political Rights, there should be no in absentia trials.
However, consistent with U.S. case law, the situation in
which the accused has been present at trial but escapes
before the trial is completed should be understood not to
be an in absentia trial.
Article 45
Article 45 obligates all Parties to the ICC's statute not
to try a person for an offense for which that person has been
tried before the ICC. This double jeopardy rule should not
apply to States that have not accepted the jurisdiction of
the ICC with respect to the offense in question.
Article 48
Article 48 authorizes the ICC to require any person to give
evidence at trial. The Article should be revised to clarify
that the ICC cannot compel the appearance of nationals of a
State that has not accepted the jurisdiction of the ICC with
respect to the offense in question.
Articles 55-57
Articles 55 and 56 envision an appeal before the trial
judges that did not preside over the defendant's trial. As
discussed above, this would not be consistent with an
important principle of U.S. jurisprudence which calls for the
establishment of separate trial and appellate courts.
In addition, Article 55 provides (in brackets) that the
Prosecutor may appeal the Court's judgment of acquittal by
asserting commission of errors of fact that have ``occasioned
a miscarriage of justice.'' Similarly, bracketed language in
Article 57 would allow the Prosecutor to apply for a review
of judgment if they discover a new fact, not known at the
time of trial, ``which could have been a decisive factor in
reaching the decision.'' In either case, an appeal by the
Prosecutor, resulting in a reversal of the judgment of the
Trial Court, would necessitate a new trial for the same
offense, thus violating the prohibition against double
jeopardy as it is understood in the United States. Thus, the
language of these articles should be amended to permit only
the person convicted by the Trial Court to request an appeal
after final judgment or a review proceeding. However, either
the defendant or the Prosecutor should be permitted to seek
interlocutory appeals of issues of law.
Article 58
As drafted, under Article 58, the only difference in the
obligation of a Party that has not accepted the ICC's
jurisdiction with respect to the offense in question and a
Party that has done so is that the former is under a general
requirement to provide judicial assistance to the ICC where
as the latter is required to respond without undue delay to a
request for assistance by the ICC. This Article should be
revised to indicate that Parties that have not accepted the
ICC's jurisdiction may, but are not required to, render
judicial assistance.
Article 63
Article 63 provides that a Party should give priority to
the ICC's request for the surrender of the accused over
requests for extradition from other States. If the object is
to ensure that the accused is prosecuted and to give States a
third alternative to extradition and domestic prosecution,
there is no good reason why a Party should not be able to
choose instead to extradite the accused to a third State.
There is no question that when it is available, national
prosecution is inherently more effective than prosecution
before an international body.
III. Conclusion
While the ILC has made a good start, it is important that
the statute be revised as indicated above (1) to confine the
Court's jurisdiction to the offenses defined in widely
ratified multilateral conventions; (2) to provide for a
separate office of Defense Counsel and a separate appellate
chamber; (3) to ensure that the rules of evidence and
procedure are adopted together with the ICC's Statute rather
than promulgated afterwards by the ICC's judges; (4) to make
clear that State Parties that have not accepted the
jurisdiction of the ICC over a particular offense are not
required to provide assistance to the Court with respect to
that offense, are not prohibited from extraditing such
offenders to a third State for prosecution, and are not
prohibited from later prosecuting such offenders if the ICC
acquits them or gives them lenient sentences; and (5) to
clarify that the Statute's requirements for State consent do
not apply to cases submitted by the Security Council acting
under Chapter VII of the U.N. Charter.
Mr. DODD. Madam President, in my closing minutes, I want to make one
comment in response to some of the arguments that have been made by
those who oppose this measure. There have been questions raised about
the particular operation of this Court--the crimes it would cover, the
manner in which judges would be chosen, the protections available for
the accused. Quite frankly, Mr. President, these questions put the cart
before the horse. They are legitimate questions, but that is not the
issue before us.
I remind my colleagues that we are not voting on a resolution of
ratification, nor are we being asked to endorse any one proposal over
another. Those questions will not be with us for several years, perhaps
more. All we are being asked to do today is to lend our support to the
basic proposition, affirmed at Nuremberg half a century ago, that when
people commit crimes against the international order, they should
expect to be brought to justice. Surely we can muster the courage,
after all we have learned, to stand up for that basic principle.
I will not repeat the arguments I have made in support of the
International Criminal Court or attempt to summarize them here. But I
do want to emphasize one very important point.
Our moment in history is before us. With the end of the cold war we
have been given a gift that previous generations could only have
dreamed of: the opportunity to leave our indelible mark on the future
itself. But as we take stock of this moment and all that it entails, I
hope we will not forget a certain lesson from the past.
In his closing statement before the Nuremberg Tribunal, Justice
Robert Jackson of the U.S. prosecution summarized the long list of
crimes the Nazis had been accused of, and the evidence against them. He
then turned his attention to the responsibility that rested upon the
judges on the tribunal. Their decision, he said, was not simply a
judgment on the guilt or innocence of the particular individuals
involved. In truth, he said, it was a judgment on the Holocaust itself.
Justice Jackson's statement reminds us why it is that we must bring
international criminals before the bar of justice, if not to undo the
wrong, at least to restore our confidence in what is decent and what is
just. He closed his argument with these words:
It is against this background that these defendants now ask
this tribunal to say that they are not guilty of planning,
executing, or conspiring to commit this long list of crimes
and wrongs. They stand before the record of this trial as
blood-stained Gloucester stood by the body of his slain king.
He begged of the widow, as they beg of you: ``Say I slew them
not.'' And the Queen replied, ``Then say they were not slain.
But dead they are * * *''
If you were to say of these men that they are not guilty,
it would be as true to say that there has been no war, there
are no slain, there has been no crime.
Madam President, I urge the defeat of the Helms amendment. And I
remind our colleagues that this is our moment to fulfill the legacy of
Nuremberg and establish, in our generation, an international criminal
court so the thugs in Bosnia and Haiti and other places around the
globe can be brought before the bar of justice. It would be a tragedy
indeed, a tragedy indeed, if this august body on this day would turn
its back on that very basic concept.
I urge again the rejection of the Helms amendment.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KERRY. Madam President, I thank the Senator from Connecticut for
his eloquent statement. He has passionately pursued this particular
issue through the committee itself, which put this language in the bill
that the Senator from North Carolina now seeks to strike.
I will not go over all of the areas, by any means. I know the Senator
from Pennsylvania wants to speak momentarily on this. But I would like
to call to the attention of my colleagues the de minimus aspects of the
language that is in here, measured against the very significant and, I
think, compelling rationale that has been laid out by the Senator from
Connecticut.
What needs to be underscored here is, first, this is a sense-of-the-
Senate resolution. It does not mandate or bind us to anything.
Second, I ask colleagues to measure what sense of the Senate it
expresses. I read directly from the language. ``The sense of Congress
that the establishment of an international criminal court with
jurisdiction over crimes of an international character would greatly
strengthen the international rule of law,'' something for years that we
have worked to uphold and to strengthen.
No. 2: ``Such a Court would thereby serve the interests of the United
States and the world community.''
No. 3: ``The United States delegation should make every effort to
advance this proposal of the United Nations.'' That is all. It simply
asks for the advancement of the proposal.
The Senator from North Carolina has asked good questions. Those are
precisely the kinds of questions that we ought to be getting the
answers to in the advancement process. Those are precisely the kinds of
questions that we ought to be asking when and if we are told that those
who are negotiating this have in fact come up with a concept. Those are
the kinds of questions that we ourselves ought to be asking as
observers to the United Nations, as the oversight committee, as we go
through the process of trying to put together this court.
But to suggest that you should not even go through that exploratory
process, that you should just automatically shut your eyes, turn your
back and shut down the exploratory process to negate the compelling
rationale for being able to find some mechanism that adequately
addresses our interests to deal with these questions of international
jurisdiction, of terrorism, of hijacking, of narcotics trafficking--we
should not turn our backs on the effort to put that together.
So I would suggest that there really should not be an enormous
engagement, there should not be a big argument here. This is a sense-
of-the-Senate resolution saying that what we tried to do for years,
what this Nation led and stood behind at Nuremberg, and other efforts,
should not be just wiped away in its incipient exploratory stages
because we have some fears about it. We ought to explore those fears,
we ought to find out if they are justified, we ought to find out if
there is a sufficient mechanism that we could put together that would
address those fears, indeed eliminate them altogether.
So I think the Senator from Connecticut has made all the compelling
rationale about why we ought to consider this. I simply think Senators
ought to focus on the de minimis aspect of this sense-of-the-Senate
language in terms of what it might do that is negative, balanced
against the extraordinary positive benefits of what it would do were we
to find a sufficient mechanism for implementing it.
Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER (Mr. Kerrey). The Senator from Pennsylvania.
Mr. SPECTER. I thank the Chair. Mr. President, I believe that the
pending provision in the legislation to encourage the adoption of an
international criminal court is an important step moving the United
States forward in supporting this concept and in trying to bring this
idea into reality. I have long been interested in the concept of an
international criminal court, as I have watched a number of major
international crimes go unprosecuted because of nationalism which has
prevented international criminals from being turned over to the United
States or to other countries where prosecutions would be obtained.
The case in the mid-eighties of Abu Abbas, an international terrorist
on the Achille Lauro, is illustrative and has been referred to in part
by the distinguished Senator from Connecticut. Abu Abbas was a
coconspirator in the hijacking of the Achille Lauro. He was on an
Egyptian airliner headed for an Arab country, but the plane was forced
down in Italy. There was practically a shootout between Italian
authorities and U.S. authorities, because the Italian authorities
refused to turn over Abu Abbas to the United States where we had the
jurisdiction to prosecute him.
He was then turned over by the Italian authorities to Yugoslavia.
Ultimately, he was not brought to prosecution until he was tried and
convicted in absentia in an Italian court and I believe received a
sentence of some 30 years.
When a congressional delegation visited Italy in 1986, the members of
the delegation confronted Prime Minister Craxi on the Abu Abbas case.
In a rather embarrassed way, he said that Italian authorities simply
could not do anything about it because of international pressure.
Later, a congressional delegation visited President Mesic in
Yugoslavia. President Mesic of Yugoslavia said the Abu Abbas case was a
hot potato that had been thrust in Yugoslavia's hands and Yugoslavia
let Abu Abbas go. It seems to me had there been an international
tribunal to take jurisdiction over Abu Abbas that Egypt might well have
turned Abu Abbas over to such an international tribunal, or Italy might
have done so, or Yugoslavia might have done so where they felt
constrained not to turn over an international criminal to the United
States because of nationalistic feelings in those countries.
There was a similar experience with an international drug dealer
named Mata in Honduras. He was turned over to the United States and
there was a virtual rebellion outside the American Embassy.
We now have a situation where the United States has indicted two
Libyans for the destruction of Pan Am 103. As we speak, that matter is
still a controversy, because the Libyan Government refuses to turn over
those two men under indictment to either the United States or to a
Scottish court for trial. If there were an international criminal
court, that might be a jurisdiction suitable for such a trial.
The United States has taken strong measures in the course of the past
decade to assert our own extraterritorial jurisdiction, which means
that we have asserted our authority to try in the United States
individuals who commit crimes against American citizens outside of the
United States. Jurisdiction ordinarily turns on the situs of an
offense. If someone is charged with committing a crime in the District
of Columbia, that person can only be tried here and not in
Pennsylvania.
On the international level ordinarily the situs of the crime would
determine that it would be triable by the authorities there, but we
know that terrorism is not a crime which a country like Egypt would
prosecute, or even a country like Italy would prosecute, or Yugoslavia,
as illustrated by the Abu Abbas case. Therefore, the United States, in
the Omnibus Crime Control Act of 1984, asserted U.S. jurisdiction over
hijacking and hostage taking involving our citizens. In a 1986 statute,
the offense of assaulting, maiming, or murdering a U.S. citizen
anywhere in the world was passed into law by the United States, from a
bill which I introduced.
In looking at the difficulties of prosecuting international
terrorists and also the difficulties of getting extradition from
Colombia and other Latin American countries on drug dealers, it seemed
to me that the idea of an international criminal court ought to be
pursued. As early as March 13, 1986, I asked then-Secretary of State
George Shultz about an international criminal court in the view of the
State Department. Then-Secretary of State Shultz responded as follows:
We need to be working on the web of law that can operate
here and in conjunction with others around the world to say
to terrorists that they have no place to hide and are going
to be prosecuted.
On June 25 of that year, 1986, I offered an amendment, No. 2187, to
explore the possibility of an international criminal court. That
amendment was agreed to. So the language of the current bill is by no
means novel. On August 27, 1986, Public Law 99-399 provided for the
exploration by the President of the possibility of establishing an
international tribunal for prosecuting terrorists.
In 1988, under the provisions of the Omnibus Anti-Drug Abuse Act,
there was a provision which I introduced calling on the President to
pursue negotiations to establish an international criminal court for
international drug trafficking.
The issue was presented in hearings of the Foreign Operations
Subcommittee on a question which I asked then Secretary of State James
Baker on March 15, 1989, and the essence of Secretary of State Baker's
testimony was that the concept of an international criminal court was
worth pursuing.
There have been quite a number of circumstances which I will not
extensively detail at the moment, but in the Foreign Operations
appropriations bill passed by the Congress and signed into law by the
President in 1990, there was a provision for the exploration by the
President of the creation of an international criminal court which was
signed into law in the 101st Congress as Public Law 101-513.
We also took up the question of an international criminal court as it
related to the trial of war criminals in the gulf war, and that also
was passed.
So there is very substantial history of the Congress being on record
as favoring the concept of the International Criminal Court.
With respect to the war crimes tribunal that has already been
established by the United Nations for the former Yugoslavia, the
Congress enacted and it was signed into law as part of the conference
report on the foreign aid bill last year a provision to make a
contribution--and this is in the report--of some $3 million to help the
war crimes tribunal for the former Yugoslavia to become operational to
gather evidence there.
As we speak, the atrocities in former Yugoslavia are rampant, and
current news reports are full of proposals and disagreements as to what
action ought to be taken to try to stop the atrocities, or try to do
something about them. Ground military action has been pretty much ruled
out. There has been some authorization for air strikes.
It has been very regrettable that the international community has not
acted there in terms of some forceful action to stop those atrocities.
One line of activity which has been acted upon is the creation of the
war crimes tribunal. Judges have been appointed, and there is now a
great deal to be done in terms of gathering evidence and bringing the
war criminals to justice. But that again is a reaffirmation of the
policy of the United States adopted by the Congress that the
international rule of law is very important.
This is a subject where many of us in this body who are lawyers and
have been prosecuting attorneys--and I have had experience along that
line being the district attorney of Philadelphia and having been an
assistant DA--have great regard for the deterrent effect of
prosecutions, providing we mean business, and we have yet to show that
we mean business on the war crimes tribunal in the former Yugoslavia as
the world community did mean business with the Nuremberg trials after
World War II.
When our distinguished colleague from North Carolina raises
considerations about sovereignty and about the liberty of the American
people and about the composition of the Court and about the guarantees
of jury trial and the guarantees of speedy trial, those are all issues
which need to be taken up in due course and to be very carefully
considered. But the scope of what is before the Senate at this moment
is important to focus on, and that is an effort by the distinguished
Senator from North Carolina to strike the sense of the Senate which
says that there should be the establishment of an international
criminal court with jurisdiction over crimes of an international
character. It states further that such a court would serve the
interests of the United States and the world community.
The specific offenses over which the Court would have jurisdiction
will have to be very carefully defined.
It has been said, with merit, that one person's freedom fighter is
another man's terrorist. So that we have to focus on crimes which are
agreed upon by the world community as being international crimes. There
is no doubt that hijacking is such a crime. There is no doubt that
hostage taking is such a crime. There is no doubt that international
drug sales constitute such criminal conduct. But simply stated, the
issue which is now pending before the Senate, and which has been acted
upon by the Senate on many occasions in the past, is to support the
concept of an international criminal court. It has been supported by
President Reagan, by President Bush, and it is currently supported by
President Clinton.
This is not an enormous step. Frankly, I would like to see the
Congress doing a great deal more to accelerate the process to bring the
rule of law to bear on international crimes. But it is a step forward,
and I think it would be very unfortunate if any significant sentiment
were expressed by the Senate today to reject this sense of the Congress
that an international criminal court ought to be established.
I thank the Chair and yield the floor.
Mr. KERRY addressed the Chair.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KERRY. Mr. President, I thank the Senator from Pennsylvania for
his thoughtful comments and I think it has helped shed considerable
light on what is at stake here.
I do not believe there is anybody further seeking debate on this
particular amendment. Therefore, Mr. President, I would move to table
the amendment of the Senator from North Carolina.
Mr. SPECTER. Mr. President, I wonder if the distinguished Senator
will hold off on that until Senator Helms returns to the floor because
he may want to make subsequent arguments.
Mr. KERRY. I will be delighted. The Senator indicated to me he did
not have anything further to say. I would be happy to do so if he did.
Mr. PRESSLER. May I place a statement in the Record from Senator
Orrin G. Hatch on the establishment of a permanent international
criminal court; and I would especially cite the second and third
paragraph of his statement, if I may do so. He says:
This resolution differs from the Senate's present position
on this issue which has been to encourage the executive
branch to ``explore the need for the establishment'' of an
international court. I do not quarrel with continuing to
explore and discuss the creation of such a court. However,
this resolution throws circumspection aside and proclaims
Congress' support for an international court before major
issues are resolved and instructs the executive branch to
work toward the court's establishment.
These are Senator Hatch's words:
The Bush administration extensively studied the
establishment of such a court and expressed a strong concern
that the court could turn into a politicized body which might
develop unacceptable definitions and interpretations of
crimes which could result in a release of criminals who might
otherwise be prosecuted here in the United States.
Furthermore, when the ABA studied the establishment of such a
court in 1992, it recognized that more study was needed. The
United States Judicial Conference refused to reach any
conclusion regarding the feasibility of such a court in the
absence of concrete proposals and further studies.
Mr. President, I ask unanimous consent to place Senator Hatch's
statement in the Record.
There being no objection, at the request of Senator Pressler, the
statement of Senator Hatch was ordered to be printed at this point in
the Record:
Mr. HATCH. Mr. President, I am concerned with this bill's
provision that expresses the sense of the Congress that the United
Nations should establish a permanent international criminal court. The
measure urges the administration to make every effort to advance this
proposal at the United Nations. The measure is virtually identical to a
freestanding resolution introduced by Senator Dodd.
This resolution differs from the Senate's present position on this
issue which has been to encourage the executive branch to explore the
need for the establishment of an international court. (Public Law 101-
513). I do not quarrel with continuing to explore and discuss the
creation of such a Court. However, this resolution throws
circumspection aside and proclaims Congress' support for an
International Court before major issues are resolved and instructs the
executive branch to work toward the Court's establishment.
The Bush administration extensively studied the establishment of such
a court and expressed a strong concern that the Court could turn into a
politicized body which might develop unacceptable definitions and
interpretations of crimes which could result in the release of
criminals who might otherwise be prosecuted here in the United States.
Furthermore, when the ABA studied the establishment of such a court in
1992, it recognized that more study was needed. The United States
Judicial Conference refused to reach any conclusion regarding the
feasibility of such a Court in the absence of concrete proposals and
further study.
There is little doubt that international courts have, on occasion,
provided the international community with a valuable means to carry out
justice. The war crimes trials in the aftermath of World War II at
Nuremberg and Tokyo are fine examples of the effective administration
of justice of which these tribunals are capable. I fully support, as a
moral and legal matter, the prosecution and punishment of war
criminals, terrorists, and those guilty of genocide. Yet, we must
examine whether the rule of law is best served by channeling the
administration of this justice through a permanent international
criminal court, which this resolution champions, or whether domestic
courts and ad hoc tribunals are preferable.
Today, there are calls for the international community to hold
accountable those responsible for alleged war crimes and other
atrocities in the former Yugoslavia. Perhaps establishment of an ad hoc
tribunal is warranted. The success of the Nuremberg Courts serves as
evidence of how a special court can be established to handle these
matters.
Nevertheless, I am not convinced that the case has been made that a
permanent international court is warranted or appropriate. Important
issues need to be resolved before the Senate supports the establishment
of such a court. Consensus needs to be reached on numerous issues such
as: the scope of the Court's jurisdiction; the Court's composition;
what rules of evidence will be used; the penalties available to such a
court; and who would fund this massive new bureaucracy.
To elaborate, there is no guarantee that representatives from such
nations as Syria or North Korea would be precluded from serving on such
a court. Further, we need to resolve what acts constitute international
crimes. The resolution before the Senate refers to war crimes,
genocide, and terrorism. While we certainly abhor and condemn such
acts, what is the Senate to make of the resolution's additional
reference to other crimes of an international character? This
resolution does nothing to prevent the U.S. delegation from advocating
the addition of environmental offenses to the list of international
crimes. Nor does it ensure that the United Nations will not make
imperialism or colonialism a crime of international character.
Mr. President, can anyone assure the Senate that such a court would
adhere to our constitutional standards? According to the Administrative
Office of the U.S. Courts, draft proposals for such a court fail to
provide the right to a jury trial and lack other fundamental
protections for the accused.
In closing, the fundamental issue before the Senate is whether the
Senate is prepared to subject the American people to the prosecutorial
arm of a court run by the United Nations. Is the Senate prepared to
allow American citizens to be held in judgment for environmental crimes
or for imperialist offenses by so-called judges from dictatorial
nations which hurl anti-U.S. declarations on a seemingly daily basis?
Additionally, is the United States prepared to waive its sovereign
authority to prosecute terrorists who commit crimes against American
citizens in favor of a permanent body that may not be as diligent or
that may be subject to political influence. The answer to all of the
questions should be a resounding, ``No.'' The Senate should reject this
resolution. It is premature and imprudent.
For these reasons, I urge my colleagues to support the Helms
amendment.
Mr. PRESSLER. Mr. President, I say for my myself, whether or not one
supports the concept of an international criminal court, it is not
appropriate to offer a blanket endorsement from Congress at this time.
There is currently a draft statute for an international criminal
court before the U.N. Sixth Committee. This draft statute was put forth
this summer by the International Law Commission. Numerous issues of
concern to the United States remain.
Because the United States has remaining concerns over the scope,
jurisdiction, system for appointment of judges, and other issues
associated with the establishment of a permanent international criminal
court, a blanket endorsement from Congress would be counterproductive
to the U.S. negotiating position.
Furthermore, the United States is already actively working with the
members of the Sixth Committee of the United Nations in examining the
issues relating to the establish of an international criminal court.
Therefore, it is not beneficial for Congress to preempt these
discussions with a sense of Congress resolution endorsing the
establishment of a court.
Now, the following are direct quotes from the State Department legal
adviser, Conrad Harper's, submission to the U.N. Sixth Committee. They
express only a portion of the concerns that have been raised by former
legal advisors and other scholars, but they are significant enough to
encourage further refinement and examination before Congress offers its
endorsement:
We are not yet convinced that the general category of
``crimes under general international law'' is sufficiently
well defined.
We will want to ensure that cases which can be properly and
adequately handled in national courts are not removed
unnecessarily to the international court. We also have a
concern over how international jurisdiction would relate to
existing status of forces agreements, the prosecution of war
crimes, and other military matters.
``We also note that under the current proposal, many states
which have a definite interest in a particular case have no
role in deciding whether the international criminal court or
national courts handle that case.''
``We also believe that there is a need to think through how
the international criminal court will affect existing
extradition relationships.''
``We note that the current draft's provision for immediate
arrest and surrender of an offender may be inconsistent with
requirements for a judicial hearing that are for the United
States, and likely for other states as well, a matter of
constitutional dimension.''
``We note, for example, that the current draft does not
make provisions for a true `appeal' to a separate group of
appellate judges.''
``Our review is continuing, and this is not a complete list
of our concerns. . . . I wish to emphasize that my Government
is ready to work energetically with the members of this
Committee to examine the issues related to establishing an
international criminal court, and to work together to resolve
the relevant issues and concerns.''
In negotiations to establish an international criminal court that
works, the U.S. position may be undercut by this blanket endorsement.
I thank the Chair and yield the floor.
I ask my colleague if we can move forward on my other amendment to a
vote.
Mr. KERRY. Mr. President, we are just checking with leadership to
make certain that we can proceed. I hope in a moment we can propound
the unanimous consent. Prior to that, I believe on the amendment of the
Senator from South Dakota that was previously set aside temporarily, I
believe he did not request the yeas and nays to date. Therefore, that
amendment is open to modification. I ask the Senator at this time if he
wants to offer the modification that is agreed upon.
Amendment No. 1253, As Modified
Mr. PRESSLER. Yes.
Mr. President, I wish to modify the percentage in the second
paragraph, if after a year, from 50 to 20 percent that has been agreed
to. I would seek a rollcall vote on it. I ask unanimous consent that
that be done.
The PRESIDING OFFICER. Will the Senator send his modification to the
desk?
The amendment is so modified.
The amendment No. 1253, as modified, is as follows:
Amendment No. 1253, As Modified
Beginning on page 72, strike out line 1 and all that
follows through line 5 on page 74 and insert in lieu thereof
the following:
SEC. 170B. UNITED NATIONS BUDGETARY AND MANAGEMENT REFORM
(a) Withholding of Assessed Nonpeacekeeping Contributions
to the United Nations.--(1) In fiscal year 1994, 10 percent
of the amount of funds authorized to be appropriated for that
fiscal year for United States assessed contributions to the
United Nations and its specialized agencies shall be withheld
from obligation and expenditure until a certification is made
under subsection (b).
(2) Beginning with fiscal year 1995 and at the beginning of
each fiscal year thereafter, 20 percent of the amount of
funds authorized to be appropriated for each fiscal year for
United States assessed contributions (other than for
peacekeeping activities) to the United Nations and its
specialized agencies shall be withheld from obligation and
expenditure until a certification is made under subsection
(b).
(b) Certification.--The certification referred to in
subsection (a) is a certification by the President to the
Congress that--
(1) the United Nations has established an independent and
objective Office of Inspector General to conduct and
supervise audits, inspections, and investigations relating to
the programs and operations of the United Nations and each of
the specialized agencies of the United Nations;
(2) the Secretary General of the United Nations has
appointed an Inspector General, with the consent of the
General Assembly, solely on the basis of integrity and
demonstrated ability in accounting, auditing, financial
analysis, law, management analysis, public administration, or
investigations;
(3) the United Nations Office of Inspector General is
authorized to--
(A) make investigations and reports relating to the
administration of the programs and operations of the United
Nations and its specialized agencies;
(B) have access to all records and documents or other
material available which relate to those programs and
operations; and
(C) have direct and prompt access to any official of the
United Nations or of any of its specialized agencies,
including any head of a specialized agency or official of the
United Nations Secretariat;
(4) the United Nations Office of Inspector General is
keeping the head of each specialized agency, the Secretary
General, the members of the Security Council, and the members
of the General Assembly fully informed about problems,
deficiencies, and the necessity for, and progress of,
corrective action;
(5) the United Nations has established measures to protect
the identity of, and to prevent reprisals against, any staff
member making a complaint or disclosing information to, or
cooperating in any investigation or inspection by the Office
of the Inspector General; and
(6) the United Nations has enacted procedures to ensure
compliance with the recommendations of the Inspector General.
(c) Definition.--For purposes of this section, the term
``United Nations operations'' includes any program, project
or activity conducted or supported, in whole or in part, by
the United Nations or any of its specialized agencies.
Mr. PRESSLER. I ask for the yeas and nays on that.
The PRESIDING OFFICER. Notwithstanding that the amendment is not
currently pending, it is in order to ask for the yeas and nays at this
time. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. CONRAD. Mr. President, I am pleased to be a cosponsor of Senator
Pressler's amendment to S. 1281, State Department Authorization, which
would require an independent inspector general for the United Nations.
In addition, I would like to commend Senator Pressler for the work he
has done on issues relating to waste, fraud, and abuse at the United
Nations.
It is no secret that the United Nations has been plagued with
management and organizational difficulties for some time. In fact,
throughout the 1980's, the United States regularly withheld a portion
of its assessed contribution to the United Nations, in order to
encourage better management practices.
In March 1993 Dick Thornburgh, then United Nations Undersecretary
General for Management, released a report that raised even more serious
concerns with the United Nations budget and management practices.
According to the report, the United Nations still did not have modern
word processors and many employees were ``deadwood workers protected by
patronage.'' In addition, Thornburgh said there was no effective means
to deal with waste, fraud, and abuse at the United Nations.
The waste and mismanagement that has plagued the United Nations for
some time is completely unacceptable, particularly in light of the
current fiscal situation. Last year, Congress and the administration
showed real courage in enacting a comprehensive deficit reduction
package. This package will reduce the deficit by $496 billion over 5
years. A number of tough spending cuts were enacted with that law, and
the spending choices facing Congress in the upcoming fiscal year will
be equally difficult. In light of the Federal budget deficit and the
many worthy programs that are facing tough budget cuts, we cannot and
we must not continue to spend money in areas where we know it will be
squandered away by mismanagement. The United Nations must develop a
mechanism to deal with its internal problems immediately. I believe the
Pressler amendment will help to accomplish this goal.
As reported by the Foreign Relations Committee, S. 1281 directs the
President, through our U.N. Representative, to propose that the U.N.
Secretary General form an advisory committee to create a United Nations
mechanism for budgetary audits and ways to investigate waste, fraud and
abuse. I do not believe these provisions go far enough. Far too much
time and money has been wasted already.
The Pressler amendment requires the President to certify to Congress
that the United Nations has established an independent Office of
inspector General. If such certification is not made, the United States
will withhold 10 percent of its assessed obligation in fiscal 1994, and
20 percent of its assessed contribution in fiscal 1995.
Clearly, there are some who will disagree with any measure that would
withhold U.S. contributions to the United Nations. But I believe that
these steps are the absolute minimum we must take to ensure the
establishment of an inspector general for the United Nations. Passage
of the Pressler amendment is an important first step to ending waste,
fraud, and abuse. We owe it to taxpayers in our States and all over the
country to adopt this amendment.
Mr. MOYNIHAN. Mr. President, I rise to oppose the amendment to
withhold U.S. contributions to the United Nations offered by my
colleague from South Dakota, on the grounds that it violates the solemn
treaty obligations of the United States.
Certainly, the United Nations could benefit from increased scrutiny
of its operations. When abuses are suspected they should be
appropriately investigated. The United Nations could greatly benefit
from a thorough investigation of its practices and policies with the
aim of improving efficiency and curbing abuses. However, to withhold
our assessed contribution violates our commitments under the U.N.
Charter and the Constitution. Article VI of the Constitution is clear
on this point. All treaties made ``shall be the supreme law of the
land.'' Agreed to by two-thirds of the Senate.
We have been down this path before. In the 1980's, the Senate passed
a similar amendment offered by Senator Kassebaum which also reduced our
contribution to the United Nations. What did this achieve? The United
States was transformed into the biggest deadbeat at the United Nations.
We ran up huge arrearages, still totalling hundreds of millions. We
lost moral authority within the institution. And we undermined our
ability to affect the very changes sought by the Kassebaum amendment.
Changes were made due to the financial crisis we helped to create. Some
were beneficial. But they were achieved at great cost to our reputation
for fidelity to our international commitments.
The United Nations was created in the aftermath of the chaos caused
by the Second World War. Its purpose was to enact laws to prevent
international aggression. Our safety has increased by what might be
termed the evolution of civility. Progress is slow. But our security is
reduced if we who enjoy the benefits of international law undermine our
commitments by selective adherence to those laws. Congresses should be
seeking ways to strengthen the rule of law, not to flaunt it.
Mr. KERRY. Mr. President, we are just awaiting final word with
respect to proceeding forward. Again, I ask colleagues if they do have
amendments at this time, the bill is open for further amendment. We
would clearly like to try to proceed. I know many of our colleagues are
at a luncheon now with former President Nixon. But I would remind staff
that are listening or colleagues that are still following the
proceedings on the floor that the majority leader would like to try to
finish this bill if possible by tomorrow evening. While there is still
some 50 or 60 amendments supposedly on the list, we do not have 50 or
60 Senators in line waiting to bring them up.
So we would obviously ask, if there are amendments available, to be
brought right now. This is a good time to bring them.
Mr. PRESSLER. Mr. President, if I could address the manager of the
bill on the opposite side, I do have two amendments that are ready to
go on the nonproliferation issue. If we can have a short quorum call
and preferably do my two nonproliferation amendments, could we get a
time certain for the vote? Could we vote at 2 o'clock?
Mr. KERRY. Mr. President, we are hoping to propound the unanimous
consent to vote at 2 o'clock. We are just waiting for a few moments. If
I could have a private visit with my colleague, I think we can work out
a schedule on these other amendments. But we are not yet clear on his
two amendments. I would suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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