Advocates of a permanent international court to try perpetrators of
war crimes and other "crimes against humanity" achieved a major
success in July 1997, with the adoption of a multilateral agreement
called "the Statute of Rome." This treaty will enter into force after
ratification by sixty states (which is expected to occur in 1999 or
soon thereafter), creating the first new global juridical institution
since the International Court of Justice (ICJ) in 1945. In the eyes
of its supporters, the nascent International Criminal Court (ICC) is
simply an overdue addition to the family of international
organizations, an evolutionary step up from the Nuremberg tribunal,
and the next logical institutional development over the ad hoc war
crimes courts in Bosnia and Rwanda.
On the surface, this logic is straightforward. Through the Genocide
Convention of 1948, the four Geneva Conventions of 1949, and
subsequent agreements, many of the "principles" of Nuremberg have
been adopted in international treaties. The Cold War, however,
essentially froze any prospect that the United Nations could serve as
a useful vehicle for the creation of new institutions to "enforce"
these conventions. Until the Security Council created the Bosnia
tribunal in 1993, and a copy for Rwanda shortly thereafter, there
were no international war crimes courts. Only the sporadic use of
national judicial mechanisms existed, and more often than not these
legal systems were either unavailable to the victims of war crimes
and crimes against humanity, or were deemed inadequate afterthoughts.
The ICJ, although popularly known as "the World Court", has
jurisdiction only over disputes between states, not the adjudication
of individual guilt or innocence for violations of international
codes of conduct.
With the fading of the Cold War, and particularly with the
inauguration of the Clinton administration, however, the
International Law Commission resumed serious discussions about the
creation of a permanent international criminal court, moving in 1994
to a Preparatory Committee established by the General Assembly. This
Committee (essentially a committee of the whole General Assembly)
made the final preparations for the Rome Conference in the summer of
The product of the Conference--the Statute of Rome--establishes both
substantive principles of international law and creates new
institutions and procedures to adjudicate these principles.
Substantively, the Statute confers jurisdiction on the ICC over four
crimes: genocide, crimes against humanity, war crimes, and the crime
"Genocide" is defined essentially as in the original Genocide
Convention of 1948, and prohibits acts intended to destroy national
or ethnic groups (Article 6 of the Rome Statute). "Crimes against
humanity" are broadly defined to prohibit "widespread or systematic"
attacks against civilians that result in murder, enslavement,
torture, rape, persecution, enforced disappearances, apartheid, and
other enumerated offenses (Article 7). Prohibited "war crimes"
include acts "committed as a part of a plan or policy" such as:
violations of the four Geneva Conventions; attacks against civilian
populations and objects or humanitarian personnel or installations;
using weapons that cause superfluous injury or unnecessary suffering;
outrages upon personal dignity; starvation as a method of warfare;
using civilians as human shields; and a variety of other offenses
(Article 8). The "crime of aggression", although declared criminal,
is not defined, and the ICC's jurisdiction will not actually attach
until the states party to the Statute of Rome agree on a definition
pursuant to the Statute's amendatory articles.
Organizationally, the Statute creates an International Criminal Court
of eighteen justices to be selected by the treaty parties, and
elaborates the Court's structures and procedures. Judges on the Court
must reflect "the principal legal systems of the world" and an
"equitable geographical representation." Unlike the ICJ, the Court's
jurisdiction is "automatic", applicable to individualsaccused of
crimes under the Statute, in many cases regardless of whether their
governments have ratified it (Article 25). Moreover, the Court's
jurisdiction includes not only those who actually commit offenses,
but also commanders or persons who ordered their actions; who knew or
should have known that crimes were about to be committed; or who
failed to exercise proper control over subordinates, including heads
of state or government and members of parliaments (Articles 27 and
28). Those convicted are subject to imprisonment and fines, but there
is no provision for the death penalty (Article 77).
A particularly important new institution is the Office of the
Prosecutor, which "shall act independently as a separate organ of the
Court" (Article 42). The Prosecutor, elected on a secret ballot by an
absolute majority of the parties, is responsible for conducting
investigations and prosecutions before the Court; no member of the
Prosecutor's staff may accept instructions from any outside source.
The Prosecutor may initiate investigations based on referrals by
those states party to the Statute, or on the basis of information
which he or she otherwise obtains. Although the Security Council may
refer a matter to the ICC, or may order it to cease a pending
investigation, there is no requirement that the Council play any role
at all in the ICC's work (Article 16).
Described in these terms, one might assume that the ICC is simply a
further step in the orderly march toward the international rule of
law and the peaceful settlement of international disputes, sought
since time immemorial. Why, then, did the Clinton administration--a
principal moving force to create a permanent war crimes court in the
five years before the Rome Conference--find itself, to its dismay,
unable even to sign the Statute, let alone propose its ratification
by the Senate? Why was the United States so isolated from its
European allies? What are the prospects for an ICC to which the
United States does not belong?
But Whom Will the Hammer Strike?
What happened in Rome is the completely unintended consequence of the
administration's own basic policies, starting in its first days in
office. Security Council Resolution 808, creating an international
criminal tribunal for Yugoslavia, was adopted on February 22, 1993,
just a month after the inauguration. The Rwanda tribunal followed in
Security Council Resolution 935 in July 1994. The administration
declared these tribunals justifiable on their own merits, and also
saw them as building blocks for the ICC. Over two years ago, David J.
Scheffer, a confidante of Secretary of State Albright and chief
American negotiator on the ICC, wrote:
"The ultimate weapon of international judicial intervention would be
a permanent international criminal court (ICC). . . . The ad hoc war
crimes tribunals and the proposal for a permanent international
criminal court are significant steps toward creating the capacity for
international judicial intervention. In the civilized world's box of
foreign policy tools, this will be a shiny new hammer to swing in the
But this new hammer--the Court and the Prosecutor--has serious
problems of legitimacy. The ICC's principal difficulty is that its
components do not fit into a coherent "constitutional" structure that
clearly delineates how laws are made, adjudicated, and enforced,
subject to popular accountability and structured to protect liberty.
Instead, the Court and the Prosecutor are simply "out there" in the
international system, ready to start functioning when the Statute of
Rome comes into effect. This approach is inconsistent with American
standards of constitutional order, and is, in fact, a stealth
approach to eroding constitutionalism.
This difficulty stems from the authority purportedly vested in the
ICC to create authority outside of (and superior to) the U.S.
Constitution, and to inhibit the full constitutional autonomy of all
three branches of the U.S. government--and, indeed, of all states
party to the Statute. ICC advocates rarely assert publicly that this
result is central to their stated goals, but it must be for the Court
and Prosecutor to be completely effective. And it is for this reason
that, whether strong or weak in its actual operations, the ICC has
unacceptable consequences for the United States.
The Court's legitimacy problems are two-fold, substantive and
structural. As to the former, the ICC's authority is vague and
excessively elastic. This is, most emphatically, not a court of
limited jurisdiction. Even the meaning of genocide, the oldest
codified among the three crimes specified in the Statute of Rome, is
not clear. The ICC's creation shows graphically all of the
inadequacies of how "international law" is created.
The U.S. Senate, for example, could not accept the Statute's
definition of genocide unless it is prepared to reverse the position
it took in February 1986 in approving the Genocide Convention, when
it attached two reservations, five understandings, and one
declaration. One understanding, intended to protect American
servicemen and women, provides that ". . . acts in the course of
armed conflicts committed without the specific intent [required by
the Convention] are not sufficient to constitute genocide as defined
by this Convention." Another provides that:
". . . with regard to the reference to an international penal
tribunal in article VI of the Convention, the United States declares
that it reserves the right to effect its participation in any such
tribunal only by a treaty entered into specifically for that purpose
with the advice and consent of the Senate."
By contrast, Article 120 of the Statute of Rome provides explicitly
that "No reservations may be made to this Statute." Thus confronted
with a definition of "genocide" that ignores existing American
reservations to the underlying Genocide Convention, the Senate could
not attach these reservations (or others) to its ratification of the
Statute. Stripped of the reservation power, the United States would
risk expansive and mischievous definitional interpretations by a
politically motivated Court. Indeed, the "no reservations" clause
appears obviously directed against the U.S. Senate, and it is a
treaty provision we should never agree to.