[Congressional Record (Bound Edition), Volume 148 (2002), Part 12]
[Extensions of Remarks]
[Page 17369]
[From the U.S. Government Publishing Office, www.gpo.gov]




  THE UNITED STATES AND THE FUTURE OF THE INTERNATIONAL CRIMINAL COURT

                                 ______
                                 

                          HON. JAMES A. LEACH

                                of iowa

                    in the house of representatives

                      Thursday, September 19, 2002

  Mr. LEACH. Mr. Speaker, one of the profound issues in world affairs 
today relates to the widespread perception abroad that the United 
States has become so disproportionately powerful that we need no longer 
be constrained in our actions by international rules, treaties, and 
even traditional security partnerships. This perception has helped fuel 
mistrust of American motives and resentment of American power, 
potentially hobbling the effectiveness of U.S. foreign policy at a 
critical juncture in world politics.
  In many respects, controversy surrounding the new International 
Criminal Court is an apt symbol for this debate. The International 
Criminal Court, which came into being on July 1, will be the first 
global permanent international court with jurisdiction to prosecute the 
most heinous individual violators of human rights--genocide, war 
crimes, and crimes against humanity.
  The United Nations, many human rights organizations, and many U.S. 
allies have expressed support for the new court. The Administration, 
however, strongly opposes it and has renounced any U.S. obligations 
under the treaty.
  Although the U.S. has several valid concerns about the ICC--chiefly 
that the ICC might become politicized and capriciously assert 
jurisdiction over U.S. soldiers or high officials charged with ``war 
crimes''--our belligerent opposition to the Court also carries obvious 
downside risks to American leadership.
  America's well-deserved reputation as a champion for human rights and 
extension of the rule of law has been called into question. Our efforts 
to play hardball in the UN Security Council by threatening to withhold 
support for UN peacekeeping missions unless the U.S. is granted 
immunity from the ICC alienated friends and allies abroad. The 
withholding of military assistance to members of the ICC may be seen as 
an attempt to undermine the court and influence the decisions of other 
countries to join the ICC. By demanding special treatment in the form 
of immunity from the ICC, the US may be seen as bolstering the 
perception of its preference for a unilateral approach to world affairs 
and a determination to operate in the world exclusively on our own 
terms. As a result, U.S. efforts to build coalitions in support for the 
war against terrorism as well as the enforcement of UN resolutions 
against Iraq may have been impaired.
  Mr. Speaker, as an early advocate for the establishment of a 
permanent international criminal court based on balanced recognition of 
international statutes, I confess to being chagrined both at the 
inability of the international community to accommodate legitimate 
American concerns, and the all-or-nothing approach of our government 
that has left us without effective means to ensure that the ICC 
operates in ways that are consistent both with credible rule of law 
principles and with sensitivity to U.S. interests designed to advance 
democratic governance.
  The problem is that as a great power called upon to intervene in 
areas of the world or disputes such as the Balkans, Afghanistan and 
troubled areas of the Middle East, the U.S. is vulnerable to charges 
being leveled against actions which we might reasonably consider to be 
peacekeeping, but another power or government might charge to be 
something very different. For instance, what would happen if Serbia 
were to bring a case against an American naval pilot when such a pilot 
is operating under both a U.S. and NATO mandate? The President has 
suggested we should, exclusive of all other countries, be allowed a 
veto over applicability of international law with regard to the ICC. 
Many other countries, including strong U.S. allies, have angst about 
this demand because they see this approach as establishing the 
principle of one country being entitled to operate above the law.
  This is not an unresolvable dilemma. When the ICC treaty was under 
negotiation, it was the assumption of many that the Security Council 
where all the permanent members have a veto would play a determinative 
role in bringing matters before the ICC. If such was the case, the U.S. 
could fully protect itself as could the other permanent members. 
Unfortunately, because the past administration played a confused, 
ambivalent role in development of the treaty, it failed to get this 
common sense approach adopted and put the new administration in the 
embarrassing position of objecting to an important treaty because of 
the failed diplomacy of its predecessors.
  Based on discussions with representatives of several governments 
sympathetic to the U.S. dilemma it is my understanding that there may 
be an inclination to seek a reasonable compromise on treaty language, 
even at this late date. It would appear to be an umbrage to many 
countries to craft a provision excluding the U.S. alone from ICC 
jurisdiction, but it would seem not unreasonable on a process basis to 
return to a Security Council role. On this basis the U.S. and the 
international community should be credibly protected.
  The court would function as a treaty organization founded on state 
consent, while respecting Security Council authority to refer any 
matters affecting international peace and security to the court's 
jurisdiction. This approach has the advantage that it does not make a 
pure exception for the United States. Understandable concerns about 
inequitable protection of the nationals of permanent members of the 
Council would need to be balanced against the enhanced durability and 
legitimacy of the institution.
  Mr. Speaker, I have long believed that laws, to be effective, must 
constrain governments in their foreign policies as well as individuals 
in domestic acts, and that in order to hold governments accountable 
there must be individual accountability at the highest as well as 
lowest levels of society. Justice must be brought to the international 
frontier or life for too many will, in Hobbes' piercing phrase, 
continue to be ``nasty, brutish, and short.'' Creation of an ICC is a 
step in the direction of evolving international society but it only 
makes sense if the United States is able to join without concern for 
the legitimate exercise of its global responsibilities.
  The United States should thus seek revision or a protocol to the 
treaty ensconcing a Security Council role. Such an approach would 
achieve American objectives without calling for exclusive 
consideration.

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