[Congressional Record Volume 146, Number 155 (Friday, December 15, 2000)]
[Senate]
[Pages S11899-S11901]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    THE INTERNATIONAL CRIMINAL COURT

  Mr. LEAHY. Mr. President, I rise today to voice my strong support for 
the International Criminal Court, ICC. Like all Senators, indeed like 
all Americans, I understand the need to safeguard innocent human life 
in wartime, at the same time that we ensure that the rights of our 
military personnel are protected. The Rome Treaty establishing the 
International Criminal Court will achieve both those goals, and I urge 
President Clinton to sign the Treaty before the December 31 deadline.
  The Treaty was approved overwhelmingly two years ago by a vote of 120 
to 7. Since then, 117 nations have signed the Treaty--including every 
one of our NATO allies except Turkey, all of the European Union 
members, and Russia. Regrettably, the U.S. joined a handful of human 
rights violators like Libya and Iraq in voting against it. Only one of 
our democratic allies voted with us, and it is quite possible that we 
will end up as the only democratic country that is not a party to the 
Court.
  During the last century, an estimated 170 million civilians were the 
victims of war crimes, crimes against humanity, and genocide. Despite 
this appalling carnage, the response from the international community 
has been, at best, sporadic, and at worst, nonexistent.
  While there was progress immediately following World War II at 
Nuremberg and Tokyo, the Cold War saw the international community 
largely abdicate its responsibility and fail to bring to justice those 
responsible for unspeakable crimes, from Cambodia to Uganda to El 
Salvador.
  In the 1990s, there was renewed progress. The U.N. Security Council 
established a tribunal at The Hague to prosecute genocide and other 
atrocities committed in the Former Yugoslavia. A second tribunal was 
formed in response to the horrific massacre of more than 800,000 people 
in Rwanda.
  In addition, individual nations have increasingly taken action 
against those who have committed these crimes.
  Spain pursued General Pinochet, and he may yet be prosecuted in 
Chile. The Spanish Government has requested Mexico to extradite 
Richardo Miguel Cavallo, a former Argentine naval officer who served 
under the military junta, on charges that include the torture of 
Spanish citizens.
  A number of human rights cases have also been heard in U.S. civil 
courts. In August, 2000, $745 million was awarded to a group of 
refugees from the Balkans who accused Radovan Karadzic of conducting a 
campaign of genocide, rape, and torture in the early 1990s. Also that 
month, an organization representing Chinese students who are suing the 
Chinese Government for its brutality during the 1989 Tiananmen Square 
protests, successfully served papers on Li Peng, the former Chinese 
Premier, as part of an ongoing lawsuit.
  They are important steps towards holding individuals accountable, 
deterring future atrocities, and strengthening peace. But the ICC would 
fill significant gaps in the existing patchwork of ad hoc tribunals and 
national courts. For example:
  A permanent international court sends a clear signal that those who 
commit war crimes, crimes against humanity, and genocide will be 
brought to justice.
  By eliminating the uncertainty and protracted negotiations that 
surround the creation of ad hoc tribunals, the Court will be more 
quickly available for investigations and justice will be achieved 
sooner.
  International crimes tried in national courts can result in 
conflicting decisions and varying penalties. Moreover, sometimes 
governments take unilateral actions, even including kidnaping, to 
enforce prosecutorial and judicial decisions. The Court will help to 
avoid these problems.
  The Court will act in accordance with fundamental standards of due 
process, allowing the accused to receive fairer trials than in many 
national courts.
  In the past, when the international community established war crimes 
tribunals, the United States was at the forefront of those efforts. The 
performance of the U.S. delegation at Rome was no different. The U.S. 
ensured that the Court will serve our national interests by being a 
strong, effective institution and one that will not be prone to 
frivolous prosecutions.
  Why then did the United States oppose the Treaty, despite getting 
almost everything it wanted in the negotiations? Many observers feel 
that it was because the Administration could not get iron-clad 
guarantees that no American servicemen and women would ever, under any 
circumstances, come before the Court. A related concern was that the 
Treaty empowers the Court to indict and prosecute the nationals of any 
country, even countries that are not party to the Treaty.
  The legitimate concern about prosecutions of American soldiers by the 
Court, while not trivial, arises from a misunderstanding of the Court's 
role.

[[Page S11900]]

 The U.S. has been successful in obtaining important safeguards to 
prevent political prosecutions:
  First, the ICC is neither designed nor intended to supplant 
independent and effective judicial systems such as the U.S. courts. 
Under the principle of ``complementarity'', the Court can act only when 
national courts are either unwilling or unable to prosecute.
  Second, the Court would only prosecute the most 
atrociousinternational crimes such as genocide and crimes against 
humanity. The U.S. was instrumental in defining the elements of these 
crimes and in establishing high thresholds to ensure that the Court 
would deal with only the most egregious offenses.
  Third, the Court incorporates the rigorous criteria put forth by the 
United States for the selection of judges, ensuring that these jurists 
will be independent and among the most qualified in world. Further, the 
Rome Treaty provides for high standards for the selection of the 
prosecutor and deputy prosecutor, who can be removed by a vote of the 
majority of states parties.

  Finally, the Court provides for several checks against spurious 
complaints, investigations, and prosecutions. Before an investigation 
can occur, the prosecution must get approval from a three-judge pre-
trial chamber, which is then subject to appeal. Moreover, the U.N. 
Security Council can vote to suspend an investigation or prosecution 
for up to one year, on a renewable basis, giving the Security Council a 
collective veto over the Court.
  Because of these safeguards, our democratic allies--Canada, England, 
France, Ireland--with thousands of troops deployed overseas in 
international peacekeeping and humanitarian missions, have signed the 
Treaty.
  The Pentagon has, from day one, argued that the United States should 
not sign the Treaty unless we are guaranteed that no United States 
soldier will ever come before the Court. In other words ``we will sign 
the Treaty, as long as it does not apply to us.'' That is a totally 
untenable position, which not surprisingly has not received a shred of 
support from other governments, including our allies and friends.
  There is no doubt that further negotiations can improve the ICC, but 
it is unrealistic to expect to single out one's own citizens for 
immunity, in every circumstance, from the jurisdiction of an 
international court. If that were possible, what would prevent other 
nations from demanding similar treatment? The Court's effectiveness 
would be undermined.
  Moreover, as the United States--which has refused to sign the treaty 
banning landmines, or to ratify the comprehensive test ban treaty, or 
to pay our U.N. dues--is perceived as acting as if it is above the law, 
nations may begin to think ``why should we honor our international 
commitments?'' If the U.S. becomes increasingly isolated, our soldiers 
will face greater, not less, risk.
  Such increasing risk is wholly unnecessary. Our Armed Forces are 
known globally for their strict adherence to international humanitarian 
law and conventions governing the conduct of a military in wartime. 
Signing the Rome Treaty would be the clearest indication possible that 
we are proud of this record, and are working every day to uphold it.
  Mr. President, I too am troubled by the precedent of exerting 
jurisdiction over non-party nationals. While this is a key component of 
the Treaty which prevents rogue nations from shielding war criminals 
from the Court's jurisdiction by refusing to become a party, it could 
also invite mischief in the future. What if, for example, a dozen 
states were to join in a treaty that asserts jurisdiction over non-
parties for the explicit purpose of targeting the citizens of the 
United States and its allies? Will the Rome Treaty set a precedent that 
could make this more likely?
  In fact, there is nothing to prevent that from happening today, and 
it is highly unlikely that such treaties would achieve legitimacy. They 
would almost certainly not become recognized parts of international law 
and convention. While it is essential that we do everything possible to 
protect the rights of American citizens, we also want an effective 
Court. Indeed, there are almost certainly to be circumstances when we 
would support ICC jurisdiction over non-party nationals.
  Critics argue that the United States should ``block'' the ICC. They 
are misinformed. That is not an option. The requisite 60 countries are 
going to ratify the Treaty, and the Court will have jurisdiction over 
citizens of non-parties, whether or not the U.S. signs.
  The real issue is whether we sign the Treaty and enable the U.S. to 
continue to play a crucial role in shaping the ICC, ensuring that it 
serves its intended purpose of prosecuting the most heinous crimes--not 
the U.S. Air Force pilot who mistakenly bombs the wrong target, a 
tragic but inevitable consequence of war. It is instructive, for those 
who raise the specter of political prosecutions, that the Tribunal for 
the Former Yugoslavia--which, like the ICC, the U.S. had a key role in 
shaping--declined to investigate allegations of war crimes resulting 
from NATO bombing of Serbia. We will be in a far better position to 
protect the rights of American citizens if the Court must answer to the 
U.S. for its actions.
  We can sign the Treaty and make clear that if the Court strays from 
its intended purpose, we will take what steps are needed, from refusing 
to ratify to withdrawing from the Treaty. I sincerely doubt, however, 
that will become necessary. A key part of the Court's ability to 
function is its legitimacy. As others have said, ``the politicization 
of the Court would quickly end its relevance.''
  We all know that it is simply not possible to be part of an 
international regime and get absolutely everything one wants. Nay 
sayers can always invent implausible scenarios that pose some risk. The 
key question is: do the benefits of signing the Rome Treaty and 
throwing our weight and influence behind it, outweigh the risks? I 
believe the answer is clearly yes.
  Mr. President, the Treaty provides an adequate balance of strength 
and discretion to warrant signature by the United States. On the one 
hand, the Court is strong enough to bring war criminals to justice and 
provide a deterrent against future atrocities. On the other, there are 
important checks in place to minimize the risks of sham prosecutions of 
American troops. Yet, without the active participation and support of 
the United States--the oldest and most powerful democracy on Earth 
committed to the rule of law--the Court will never realize its 
potential.
  I agreed with President Clinton when he stated that, ``nations all 
around the world who value freedom and tolerance [should] establish a 
permanent international court to prosecute, with the support of the 
United Nations Security Council, serious violations of humanitarian 
law.''
  Those words reminded me of the President's speech at the United 
Nations six years ago, when he called for an international treaty 
banning anti-personnel landmines. Two years later, when many of our 
allies and friends were negotiating such a treaty, the Administration, 
bowing to the Pentagon, chose to sit on the sidelines. They assumed, 
wrongly, that without U.S. support the process would run out of steam, 
and they even tried, at times, to undermine it.
  Only in the final days, when the Administration finally realized the 
mine treaty was going to happen with or without the U.S., did they make 
several ``non-negotiable'' demands. Essentially, they said ``okay, we 
will sign the treaty, as long as it does not apply to our landmines.'' 
Predictably, that was rejected. Today, 138 nations have signed that 
treaty and 101 have ratified, including every NATO member except the 
United States and Turkey, and every Western Hemisphere nation except 
the United States and Cuba.
  One would have thought we would have learned from that experience. 
The fact is that the United States can no longer singlehandedly 
determine whether an international treaty comes into force. If we do 
not sign the Rome Treaty, there is a strong possibility that the Court, 
its prosecutors and judges will develop from the beginning an 
unsympathetic view towards the United States and its official 
personnel. That is especially so if we end up opposing the Court and 
its legitimacy. Do we want a Court that views itself in opposition to 
the United States? Or do we want a Court whose prosecutors and judges 
are selected

[[Page S11901]]

with the influence of the United States, and a Court that must answer 
to the United States, as its most significant state party, for its 
actions? The answer should be obvious to anyone.
  Mr. President, it is unacceptable that the world's oldest democracy--
the nation whose Bill of Rights was a model for the Universal 
Declaration of Human Rights, the nation that called for the creation of 
a permanent, international criminal court and did so much to make it a 
reality, has shrunk from this opportunity. The President should sign 
the Rome Treaty.

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