[Congressional Record Volume 148, Number 108 (Thursday, August 1, 2002)]
[Senate]
[Pages S7844-S7847]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      INTERNATIONAL CRIMINAL COURT

  Mr. BENNETT. Madam President, 1 month ago today on July 1, 2002, the 
International Criminal Court was formally brought into existence. There 
has been objection to the International Criminal Court in America and, 
indeed, there has been a great deal of angst among our friends and 
allies around the world over the fact that President Bush removed 
America's signature from the treaty that created the International 
Criminal Court.
  I have read some of the press around this controversy with great 
interest. I have been particularly struck by the fact that Chris Patton 
of the European Parliament, who is probably as good a friend as America 
has anywhere in Europe, has, in the American newspapers, expressed his 
great concern about our failure to endorse the International Criminal 
Court and to fully support it.
  I cannot speak for the administration. I cannot speak for my 
colleagues in the Senate, but I can speak for myself, and I think Chris 
Patton and the others throughout the world who have expressed concern 
with our actions on this issue have the right to understand why some 
Americans are opposed to the International Criminal Court. I intend to 
lay out today the reasons why I, as one Senator, am opposed to the 
International Criminal Court in an effort to help our friends around 
the world understand some of the difficulties that many Americans have 
and to make it clear that my opposition to the International Criminal 
Court is not a knee-jerk response as some European newspapers may 
expect.
  First, I should make it clear for those who may be listening or who 
might read the speech afterwards what the International Criminal Court 
is because I find that many of my constituents have no idea what it is. 
So very

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quickly, Madam President, I will lay out what it is we are talking 
about here.
  The International Criminal Court is a permanent international 
judicial institution that was organized and established by countries 
around the world for the purpose of redressing the most serious crimes 
in the international community. And here we are talking about those 
crimes that historically have lent themselves to war crimes tribunals--
genocide, crimes against humanity, and war crimes. Those are the crimes 
considered to be so horrific that nations and leaders of nations can be 
held responsible for their commission.
  The International Criminal Court is similar in purpose to the World 
War II tribunals that were convened after the end of that conflict. We 
know of the Nuremberg trials and the trials related to the Japanese war 
criminals. The International Criminal Court was created as a permanent 
tribunal of that kind. It is comparable to two tribunals that are 
currently in operation: The International Criminal Tribunal for Former 
Yugoslavia, and the International Criminal Tribunal for Rwanda.
  In both cases, those two bodies are moving forward to identify the 
individuals who committed crimes against humanity, or war crimes, and 
take action against them in an effort to establish an international 
norm of behavior and make it possible to hold people accountable for 
how they behaved in conflicts.
  Currently, over 75 countries have ratified or otherwise accepted the 
statute that created the International Criminal Court. That statute 
said when 60 countries had ratified, it would become effective. It is 
effective as of July 1. It is located in The Hague.
  So with that background, let me outline why I am opposed to America's 
ratification and support of the International Criminal Court as it 
currently stands. I will begin by saying why I am not taking this 
position.
  I am not taking this position because I believe America should not 
enter into international agreements. I know there are some who say we 
should not have any international agreements at all. That position is 
foolish, in my view. We have to enter into international agreements in 
the world in which we now live. Indeed, one could argue it is to 
America's benefit to do so.
  There has been controversy, for example, about the World Trade 
Organization, the WTO. I have constituents who complain about America 
membership in the WTO saying it is terrible that we are under this 
international agreement. I tell them that the WTO was America's idea 
and that the WTO makes it possible for Americans to do business around 
the world. If we did not have this kind of mechanism to sort through 
the disagreements on trade issues, America would not be able to export, 
America's economy would be damaged, and Americans would be put out of 
work. It is a good thing for the United States to be part of the WTO. 
So my opposition to the International Criminal Court is not because I 
am automatically opposed to international agreements.
  Also, it is not because I want, as some European journalists suggest, 
American dominance around the world; that America is so haughty and so 
proud that we cannot honor any kind of international law. I am enough 
of a student of history to know that any superpower that tries to 
dominate the world through their own power ultimately falls. The Romans 
found they could not maintain a worldwide empire. The Ottomans found 
they could not maintain the far-flung empire that existed all the way 
from Spain to the borders of India. More recently the British, with the 
viceroy in India and troops around the world, discovered they could not 
do it either.
  I do not think the International Criminal Court is a bad idea because 
I want America to take some kind of hyper-power position of dominance 
around the world. I think America's record throughout history is very 
good on this issue. We should remember that Americans, when they win 
wars, do not occupy territory. When we won the Second World War, we not 
only liberated the Dutch, the French, and the Belgians, we also 
liberated the Germans. They are freer today than they were under the 
Nazis. They have more human rights and more individual property rights 
than they ever had prior to the war.
  America leaves behind, as we now are demonstrating in Afghanistan, a 
legacy of freedom and food, and that legacy will continue. So the 
suggestion that opposition to the International Criminal Court stems 
from some kind of empire impulse on the part of Americans is something 
I reject.
  Finally, I do not reject the International Criminal Court because I 
want Americans to dismiss the importance of international law. After 
all, the United Nations, which heavily influences the development of 
international law, was an American idea and is located on American soil 
and has been supported by American appropriations. Most United Nations 
functions around the world involve American troops. So I reject many of 
the journalistic arguments that supposedly explain why I oppose 
the International Criminal Court. I do not think they are appropriate.

  So why do I object to the International Criminal Court? I need to go 
back a little bit in history, and I hope my colleagues will indulge me 
as I go into America's history to lay the predicate for the position I 
am taking. We in America adopted as our first state paper a document we 
call the Declaration of Independence. It is perhaps the most important 
state paper we have ever adopted.
  In the Declaration of Independence, we lay down certain principles 
which the Continental Congress believed were beyond debate; that is, 
self-evident truths. One of these self-evident truths held that 
individual rights do not come from government. The phrase in the 
Declaration of Independence is ``endowed by their Creator with certain 
unalienable rights.'' The purpose of government is set forth in that 
document. The purpose of government is to secure these rights, deriving 
its just powers from the consent of the governed.
  These are sacred words to Americans, and they come, as I say, from 
our first state document, and I believe still our most powerful.
  The reason they are so sacred is because we are the only nation in 
the world that is founded on an idea. Every other nation throughout the 
world is founded on a tribe. People are bound together by a common 
ethnic history. That may have been our beginning, but it is not the 
nation we now have.
  If I may go back to an example very close to Utah and talk about the 
Olympics. If one watched the Olympics on television and saw the 
athletes coming from the various countries around the world, one can 
almost always identify where the athlete is from by his or her name or 
the ethnic look that he or she brings to the television. But that 
cannot be done with Americans. The American Olympians are named Kuan 
and Lapinski, Louganis and Blair, Jordan and Byrd. They are Black, they 
are White, they are Asian in ethnic background. They come from all over 
the world.
  In America, we do not have a common tribal base. All that holds us 
together as a nation is a dedication to the ideas set forth in the 
Declaration of Independence, the ideas that our rights come from God 
and that the purpose of government is to secure those rights, not grant 
them in the first place.
  That is demonstrated by the fact that those of us in this Chamber, 
unlike any other parliamentarians or officeholders around the world, do 
not take an oath to uphold and defend the country or the people. Our 
oath is to uphold and defend the Constitution that was drafted to 
incorporate the core idea of this Nation. We have a sworn oath recorded 
in Heaven, to use Lincoln's phrase, to uphold and defend the 
Constitution against all enemies. So we have a unique attitude about 
rights, about law, and about our responsibilities to a document and an 
idea that undergirds that document.
  Let me speak a little more American history, and any of our European 
friends who might ultimately read this speech might, I would hope, find 
this somewhat interesting. I think there is something of a parallel 
between the adoption of the Constitution and the discussions that are 
going on around the world right now.
  The 13 States that made up the United States of America in the first 
place were united against a common

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enemy during the Revolutionary War. But when the war was over, they 
began to quarrel among themselves. They each printed their own money. 
There were tariff barriers between States. There were all kinds of 
arguments about what law would apply from one State to the other, 
somewhat like the confusion that goes on around the world today.
  The decision was made to try to find a way to impose a single rule of 
law across all 13 of these States. That is what produced the 
Constitutional Convention. When the Constitution was written and then 
submitted to the 13 States for ratification, it said, much like the 
underlying statute of the International Criminal Court, that it would 
take effect as soon as three-fourths of the States had ratified it. It 
did not require unanimous ratification but said that as soon as three-
fourths of these States have ratified it, it will take hold and it will 
apply to all. Now, in the practical world of that time, one State could 
prevent it from taking hold because if that one State, which was so 
much more powerful than the others, had not ratified it, the whole 
thing would have fallen apart. That was the State of Virginia. Another 
State arguably in that same position would be the State of New York. If 
Virginia and New York had not ratified, the other 11 could have, and we 
still would not have had a workable document.

  This, if I may be so bold, is somewhat similar to the situation that 
people are raising with respect to the International Criminal Court. 
They say 75 nations may ratify it but if the United States doesn't, it 
will not work. And the United States is outside.
  Back to our own history for a moment. Virginia was outside. Virginia 
was not the first State to ratify, Delaware was, followed by 
Pennsylvania, followed by Georgia, and so on. But Virginia was holding 
out. One of the reasons Virginia was holding out was that the man who 
was arguably the second most powerful politician in Virginia--the No. 1 
politician in Virginia was, of course, George Washington--and the 
second most powerful politician in Virginia, Patrick Henry, multiple 
times Governor of Virginia, was unalterably opposed to the 
Constitution. He led the fight against ratification in Virginia on this 
ground: He said there is no bill of rights in this Constitution. The 
rights that it seeks to protect for us Americans are not specified. I 
am not sure that he used the term ``vague'' but he could have because 
the Constitution, as originally drafted, was very vague about which 
rights would be preserved.
  Now, the leading politician in Virginia seeking ratification, James 
Madison, and Alexander Hamilton, who did get it ratified in New York, 
argued with Patrick Henry. Madison and Hamilton said to Patrick Henry: 
You don't want these rights laid out specifically in this Constitution; 
you want to leave it vague. If you enumerate them specifically, you 
will inevitably forget something, and then by not listing that which 
you forget, you will put that right in peril.
  Everybody understands, Madison and Hamilton said, that all of the 
rights we have are protected by the Constitution as it exists, and to 
specify them will limit them. You are making a mistake if you demand 
specificity.
  Patrick Henry was having none of that. Patrick Henry stood firm and 
demanded the defeat of the ratification resolution in the Virginia 
Legislature. However, he ultimately gave way to the predominant rule of 
politics in America in the 18th century which is: Anybody who opposes 
George Washington loses. George Washington, as the president of the 
constitutional conference, had enough prestige that the Constitution 
was, indeed, ratified in Virginia but with this political 
understanding: James Madison said, if you ratify the Constitution, I 
will run for Congress. I will go into the House of Representatives--
which he assumed would be the dominant body of the new government--and 
I will propose a bill of rights. That promise took enough sting out of 
Patrick Henry's argument that Patrick Henry lost the fight and Virginia 
ratified and the Constitution was adopted and we had the new nation.
  True to his political promise, Madison went to the House of 
Representatives, and offered 12 articles of amendment to the 
Constitution, 11 of which were adopted. The first 10 we now revere as 
the Bill of Rights. We can now, looking back after two centuries, 
realize that Patrick Henry was right, that the Bill of Rights is as 
much a revered part of the idea that holds this country together as 
anything else that is written in the Declaration of Independence or the 
rest of the Constitution itself. We hold commemorative ceremonies 
honoring the adoption of the Bill of Rights.

  Now, what does this have to do with the International Criminal Court? 
At the risk of being overly egotistical, let me try to play Patrick 
Henry. The International Criminal Court is based on a statute that is 
vague, so vague that I believe my constitutional rights, those for 
which Henry, Madison, Hamilton, and Washington and all the rest of them 
fought, are in peril. When I say that to my European friends, quite 
frankly, they laugh. Or they say to me, reminiscent of Madison's 
argument to Hamilton, no, no, no. You misunderstand. The International 
Criminal Court is not going to threaten your constitutional rights in 
any way. It is designed to go after the bad guys. It is designed with 
the same intent as the tribunal for Yugoslavia or the tribunal for 
Rwanda. It is designed to make sure that we have a permanent tribunal 
in place.
  My reaction to the assurances that my rights will never be attacked 
is, I think, in concert with Patrick Henry's reaction to the assurances 
that he was given by Madison and Hamilton. My concerns are reinforced 
by some of the things I have heard. For example, I have been told there 
are groups that want to bring suit in the International Criminal Court 
against President Bush, charging him with a crime against humanity for 
his failure to send the Kyoto treaty to the Senate for ratification, 
that his opposition to the Kyoto treaty constitutes such a gross 
violation of the opportunities around the world that it is a crime 
against humanity.
  I have inquired whether or not such an action could come before the 
International Criminal Court and have gone through it with legal 
scholars. The answer is, yes, such an action could come before the 
Court, but, of course, it would be laughed out by the prosecutor and 
the President would never have to go to trial. That does not give me a 
lot of reassurance, that the case could be brought--but of course the 
President would not be found guilty.
  How can we know, 20 years from now, or 30 years from now, that some 
future President would be found guilty for making a policy decision 
that he or she decided was in the best interest of the United States 
but that the International Criminal Court decided was not in the best 
interest of the rest of the world, and so it would be defined as a 
crime against humanity? And given the vague nature of the statute of 
the International Criminal Court, that is a very real possibility.
  Let me give another possibility that comes very much to home. There 
are those around the world who are insisting that the United States 
pick a numerical target for foreign aid; that is, we pick a number 
which would be a percentage of GDP. And they are saying in their 
rhetoric that the United States is not meeting its responsibility to 
the underdeveloped world until it meets this arbitrary percentage of 
GDP in adopting foreign aid.
  I am a member of the Foreign Operations Subcommittee of the 
Appropriations Committee, the subcommittee that determines how much 
foreign aid we appropriate. Under the language of the International 
Criminal Court, am I liable for my actions as a Member of the 
Senate? The language is very specific. Being a member of the parliament 
does not exempt one from the jurisdiction of the International Criminal 
Court.

  Suppose someone decides that the U.S. failure to meet that artificial 
number constitutes a crime against humanity and that if we do not raise 
our foreign aid to that number, all of those who are legislators, most 
specifically those who are appropriators, can be hauled before the 
International Criminal Court and prosecuted for our failure to adopt 
that kind of appropriation.
  I do not want to run the risk. When I raise it, once again, with 
those who are in favor of the International Criminal Court, they laugh 
it off and say

[[Page S7847]]

that is not why it was designed, that is not what it will look at, no, 
that kind of prosecution will never be brought.
  Then when I raise the question: But could it be brought under the 
language of the statute as it currently exists? They say, Well, yes, it 
could be. But you know the prosecutor would never go forward with such 
a case.
  Again, at the risk of being immodest, I want to be Patrick Henry on 
this issue. I want to say we will not proceed--I will not proceed; 
again, I will not speak for my colleagues--I will not proceed to vote 
to ratify a treaty on the International Criminal Court until I am 
satisfied that the language is so absolute that I will not lose any 
rights I currently have under the U.S. Constitution.
  I say to those who say: no, no, this is only going to deal with 
people like Milosevic. We are never going to see this sort of frivolous 
activity, and the United States should understand that you have no need 
to worry whatsoever about this international tribunal. Indeed, the 
United States helped create safeguards that are already in the 
International Criminal Court that say if the United States proceeds to 
prosecute someone who is accused of a war crime, the International 
Criminal Court will lose its jurisdiction. In other words, if an 
American serviceman is accused of a war crime, as happened in Vietnam 
in the village of Mi Lai, and the United States prosecuted that 
serviceman, as we did under the Uniform Code of Military Justice, then 
the ICC has no jurisdiction and backs away. So you, who have a great 
track record of prosecuting war crimes among your own servicemen, need 
have no worry whatsoever of this international tribunal.
  We have two precedents that are now before us that have just come up 
in the last few months, and I find them disturbing in the face of all 
of these reassurances. The first one has been written about rather 
extensively in the Washington Post and the New York Times. It involves 
a Washington Post reporter who has been subpoenaed. He happens to live 
in Paris right now. He has been summoned by the tribunal dealing with 
Yugoslavia to come in and testify. And he said: I don't want to come in 
and testify. It would have a chilling effect on reporters covering the 
war if we thought the things we wrote about the war would be subject to 
the jurisdiction of a war crimes tribunal afterwards.
  The Washington Post has taken the position that the reporter is 
exactly right. It has been written up in the New York Times also, 
sympathetically.
  The reporter's name is Jonathan C. Randal. He is retired from the 
Post. As I say, he now lives in Paris. The Yugoslavia tribunal has 
said: You do not have the right to refuse. We are going to require you 
to come. And he can be arrested by the police in Paris, handed over to 
the tribunal by the police in France, and he loses his American 
constitutional rights because the statute creating that tribunal is 
vague on the area of his rights.

  There is another incident that has just come up. The same tribunal, 
which we are told is a precedent for the International Criminal Court, 
has been asked to indict William Jefferson Clinton and his National 
Security Adviser, Anthony Lake; and the then-Deputy National Security 
Adviser, Samuel Berger; and Ambassador Richard Holbrooke; and the U.S. 
Ambassador to Croatia, Peter Galbraith, all of whom are being accused 
of complicity in war crimes conducted by a Croatian general who was 
acting within the framework of American foreign policy at the time.
  Here is a case where a President and his advisers make a decision in 
the best interests of the United States. The President and his advisers 
are now being investigated to see whether or not they should be called 
before the tribunal.
  The specter of an American President called before an international 
tribunal for actions as straightforward as President Clinton's actions 
were in this circumstance is a specter I do not want to see repeated 
before the International Criminal Court. I do not want any future 
American President to believe that he or she is in danger of being 
named as an accomplice in some act of some other individual. We do not 
know whether or not the International Criminal Court could do that 
under its present statute. It is so vague that it cannot answer that 
question. In other words, under the present circumstance, it is not 
just an American citizen such as the reporter from the Washington Post 
who might be called in, it is not just a member of the Appropriations 
Committee who might be called in, there is a precedent being 
established that the President of the United States might be called in 
to answer in this international forum for actions he or she took in the 
best interests of the United States as those interests were defined at 
the time.
  So I come back to my reasons for not wanting to ratify the treaty 
creating the International Criminal Court. I understand that as he 
signed it, President Clinton himself said this treaty is not ready for 
ratification. President Bush took our signature off it in order to make 
it clear to the world that it was not ready for ratification. I applaud 
that position--both President Clinton's position that it is not ready 
to be ratified and President Bush's decision to remove all doubt as to 
America's position on this point.
  But I do want to make it clear, as I tried to do at the beginning, 
that I am not opposed to the idea of creating some kind of tribunal 
that can deal with these heinous crimes we see around us in this world 
that is still not rid of the horrific activities that are called war 
crimes and crimes against humanity. I am not opposed to America being 
subject to the rule of international law in an area where America's 
track record of behavior is so good that I am sure America could handle 
this without any difficulty. My problem is the vagueness. My problem is 
the possibility that the International Criminal Court will go far 
beyond what we think of as war crimes and will invent new ones, like 
the ones I have described here. My problem is that we do not have a 
clear outline of rights that will be protected in this Court.
  Just as Patrick Henry stood and said, do not ratify the Constitution 
of the United States until there is a clear bill of rights written into 
it, and held that position to the point that James Madison finally gave 
in and gave us the Bill of Rights, I think American legislators should 
stand and say: Do not ratify the International Criminal Court until 
there is a bill of rights, until we know exactly that the rights we 
have under the Constitution, that the Declaration of Independence 
declares as being ours by God-given sanction, are protected, that 
Americans will not be called before this Court in a way that would put 
us in jeopardy of those rights. That is my bottom line with respect to 
the International Criminal Court.
  I believe the United States should stay engaged and involved in 
discussions about it. I don't think we should turn our backs and walk 
away and say we will never have anything to do with it or be involved 
in it. I think by virtue of its observer status, which it still has 
with respect to the International Criminal Court, the United States 
should continue to talk to the other countries in the world about this.
  But the bottom line should be that when the United States finally 
does decide to ratify the International Criminal Court, it will be in a 
regime where no American citizen will lose any of the rights that are 
currently guaranteed to him or her under the American Constitution.
  I believe it can be done. I encourage everyone around the world to 
focus on that and not say we don't need to talk about that, that this 
is just for the bad guys, but recognize that if you are building an 
institution that is going to last for 50, or 100, or 200 years, as our 
Constitution has, you must be as careful in creating it as the Founders 
were in creating our Constitution in the first place.
  We are the freest nation in the world. We would like the rest of the 
world to have the same benefits as we do. Let us be very careful as we 
create an international judicial body to make sure that it maintains 
that high standard of freedom.
  I yield the floor.

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