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Argument: Joining ICC will renew American leadership in international law

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David Scheffer, former US Ambassador at Large for War Crimes Issues (1997-2001). "The US and the International Criminal Court Then and Now". Jurist. 16 July 2008 - One decade ago, on July 17th, 1998, I sat in a crowded room in Rome with diplomats from 148 other nations knowing that I failed my country and the world. As head of the United States delegation to the talks creating the International Criminal Court, I rejected the final text of the treaty for the court. Since then, 106 countries, including almost all of our allies, have joined the court while Washington remains outside it.

President Bill Clinton believed the court should be built by the end of the 20th century and as his Ambassador at Large for War Crimes Issues it was my job to make that happen. The United States spearheaded the Yugoslav and Rwanda war crimes tribunals and helped lead the talks culminating in the Rome conference. At Rome we achieved most of our goals: defining the atrocity crimes to be prosecuted (genocide, crimes against humanity and war crimes), affirming the court’s structure, general principles of criminal law and due process rights, and deferring cases to national courts unless they are unwilling or unable to prosecute suspects.

The United States wanted only the United Nations Security Council to initiate or approve referrals of atrocity crimes to the court. We opposed independent powers for the prosecutor. But we lost that battle early at Rome and moved on.

The Joint Chiefs of Staff and the late Senator Jesse Helms, chairman of the Foreign Relations Committee then, were breathing down my neck, insisting I do nothing to expose United States soldiers and citizens to the court’s jurisdiction. With Secretary of State Madeleine Albright’s support, I had proposed going to Rome with a saleable deal that would ensure no liability for Americans during the years of our non-party status, which were certain to be many, in exchange for the kind of court most governments insisted upon and met most of our demands. The Pentagon rejected my proposal and sought full immunity forever. (One year later they asked me to resurrect my proposal but by then it was too late.)

In the Rome conference’s final week I obtained Pentagon approval to negotiate one last proposal: Any new party to the treaty could opt out of the court’s prosecution of its nationals for committing any crimes against humanity or war crimes, but not genocide, during the first ten years only. This would give the United States and others a transitional period during which to adjust to the court’s jurisdiction, observe its performance and then withdraw if desired. The other Security Council permanent members (Britain, France, Russia, China) agreed to advance this proposal which, if adopted, would have enabled our delegation to join consensus on the final draft of the treaty.

But most governments rejected our tardy initiative. The Pentagon told me to forget about seeking any other approval from Washington, which then instructed me to call for a vote just to register American opposition to the final text. I objected because we would go down in flames and only reassert American exceptionalism. We could have recorded dissent with a strong floor statement. But diplomats follow instructions. I voted “no” with Israel and several dictatorships.

Hundreds of delegates and civil society advocates leaped up and cheered our defeat. Sir Frank Berman, the British negotiator, remained seated next to me in a remarkable act of respect. From that moment forward, the United States no longer led the pursuit of international justice.

[...] As the American negotiator I argued that the court would need the United States to function effectively on the global stage. But following years of misconduct under the Bush administration, one might ponder whether it is the United States that needs the International Criminal Court to help restore its credibility and reassert fundamental principles of humanity.

"U.S. Policy Regarding the International Criminal Court". Congressional Research Service. 29 Aug. 2006 - The United States has enjoyed a long reputation for leadership in the struggle against impunity and the quest for universal human rights and the rule of law. Human rights organizations have expressed concern that U.S. refusal to ratify the Rome Statute, coupled with any actions that might undermine the ICC, could cause the United States to lose the moral high ground and damage its influence world-wide, including its ability to influence the development of the law of war. The perceived U.S. willingness to hold U.N. peacekeeping missions hostage to U.S. demands for immunity from the ICC may deepen the rift between the United States and allies that support the ICC. The withholding of military assistance and other economic aid to members of the ICC may also be seen as an effort to coerce countries to refuse to ratify the Rome Statute or to sign an Article 98 agreement, which could appear to some as undermining the ICC and negating the Administration’s stated intent to respect the decisions of other countries to join the ICC. By seemingly demanding special treatment in the form of immunity from the ICC, the United States may bolster the perception of its unilateral approach to world affairs and its unwillingness to abide by the same laws that apply to other nations. This perception could undermine U.S. efforts at coalition-building to gain international support for the present war against terrorism and operations in Iraq, as well as future international endeavors.

Rebecca Roe. "The U.S. should embrace the international justice system". Seattle Times. 20 Sept 2007 -- The absence of U.S. participation in the ICC is an embarrassment. Americans believe in justice; and as a society, we believe people who commit atrocious acts should be brought to account and punished. These values are the foundation of our criminal-justice system: accountability, punishment and restitution. The rule of law has made America the great nation that it is, and the goals of the American justice system are the goals of the ICC.

We cannot reshape societies and eliminate ethnic hatred. We can and we must help achieve accountability. To stand idly by is to suggest the slaughter of thousands of innocent people is not a moral transgression worthy of our time and effort.

Philippe Sands and Julian Brookes. "Lawless World". Mother Jones. 19 Dec. 2005 - In the 1940s, the United States, with the strong support of Great Britain, was the prime mover in the creation of a new world order based on international law. In a few short years their efforts brought into being the UN Charter, the Universal Declaration on Human Rights, the Genocide Convention, and the General Agreement on Tariffs and Trade, among other landmark laws and institutions designed to set limits on the use of force, promote the protection of human rights, and establish a framework for international trade and global economic integration.

Six decades later, as Philippe Sands explains in Lawless World,* the US, aided in some cases by a compliant British government, seems bent on undermining the legal order it did so much to foster. This isn't entirely the doing of the current US government—the turn away from international law starts with Reagan—but the second Bush administration has certainly brought a whole new level of energy and commitment to the project, particularly since the attacks of Sept. 11, 2001. Thus the US in recent years has unsigned the Kyoto Protocol and backed out of the Anti-Ballistic Missile Treaty; tried (unsuccessfully) to kill off the International Criminal Court; disregarded human rights law in its treatment of detainees in the "war on terror"; and launched an illegal "preventive war" in Iraq.

The Bush administration has argued that international law isn't up to the challenges of an age of global terror—that it constrains US power and thus compromises national security. Sands argues on the contrary that the need for all nations to respect the rules is more urgent now than ever, and that the US will surely come to regret its recent actions and the precedent they set. As he wrote in a recent op-ed: "We live in a complex, interdependent world in which social, political, economic and religious values and interests collide with increasing frequency over an ever greater set of issues. International law sets minimum standards of behavior. Outside of bullying and force, it is all we have to provide a framework for resolving those differences. Without it, we are back to the law of the jungle."

Ian Williams. "Immune from prosecution". Salon. 16 June 2000 - In Rome, the U.S. delegation sought concession after concession in order to try to deliver what Helms demanded, that no American should ever stand in the dock. Their major effort was to ensure that any prosecution would have to be approved by the Security Council, which meant that the United States could veto any attempt to prosecute an American. Of course, that would also mean that Russia and China could veto prosecutions of their clients and proteges.

In the end the United States was defeated in Rome although it did manage to get many concessions. The overwhelming majority of countries adopted the statute with no provision for Security Council filtering of suspects. Meanwhile, the United States joined such paragons of international law and order as Iraq, Libya, Syria and China in the tiny minority against.

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