Criminal Neglect

(The International Criminal Court)

by Ian Williams

The Nation magazine, August 10 /17, 1998

The rest of the world threw the United States to the lions in Rome in mid-July with their 120-to-7 vote to establish the International Criminal Court. It also let the court keep most of the teeth that US diplomacy had spent the past six months trying to extract.

Based in The Hague, the UN-sponsored court will have an independent prosecutor who can investigate end prosecute genocide, war crimes and crimes against humanity-including some crimes committed in internal armed conflicts. War crimes include the use of children under 15 as soldiers, rape, sexual slavery and forced pregnancy. For prosecutions to begin, either the state where the crime took place, or that of the accused, must give consent. Although there are serious flaws in the treaty, overall it is far better than it would have been if the US position had prevailed.

US delegate David Scheffer told the conference, "My colleagues have worked eighteen-hour days since June 15 and every American should be proud of their efforts to achieve our objectives." However, the company to which his lonely delegation was reduced indicates that abject shame would be a more suitable emotion. The stunned US team, which had spent five weeks publicly pandering to the paranoia of the Pentagon and Jesse Helms know-nothings, was left abandoned by all but a few strange unsavory accomplices believed to have included China, Israel, Iraq and Libya. Israel's ominous reason for opposition was inclusion of population transfers as an indictable crime.

The delegations who defied Washington's arm-twisting showed that although the United States may be the world's only remaining superpower, other countries increasingly see it as a microcephalic, over-muscled giant. A reason for the overwhelming majority pitted against Washington is the Administration's total lack of credibility. The United States has still not rejoined the International Court of Justice decades after the court ruled that mining Nicaraguan harbors in peacetime was illegal, and stands to lose its vote in the UN General Assembly at the end this year for non-payment of back dues. None of the delegates in Rome thought there was the slightest chance of Congress signing on to the ICC, no matter how many concessions were made.

It would indeed have been better, for the world and the United States, if America were on board for the ICC, but certainly not at the price of scuttling it, as the Administration wanted. As it is, the United States has put some serious holes in the structure, but luckily none of them are below the water line. The court can still try Americans, and others, for crimes against humanity, and the United States will have to persuade every other veto-holder on Security Council before it can hold off a prosecution.

One of the most disturbing aspects of the US involvement the negotiations was the decision by the White House to subcontract policy-making on the ICC to the Pentagon, which conducted it with the same brontosaurian finesse it showed in vetoing US accession to the UN convention against landmines. In his talking points on the court, Defense Secretary William Cohen verged on threatening a US pullout from Germany if it stuck with the rest of the democracies in giving the court independence. In March more than a hundred foreign military attaches were summoned to the Pentagon to be whipped into line to warn their governments of the unfavorable consequences of the ICC. In many of these countries, the military is the government, instead of merely having far too much influence, as in Washington. The whole point of the ICC is to punish and deter their murderous behavior. Failing to secure a pre-emptive and exclusive amnesty for US troops, the Pentagon was quite prepared to weaken the court to allow military dictators and war criminals around the world to take advantage of the exception it was seeking for its own troops. But then, the Pentagon's dubious record of aid and comfort to criminal regimes and its less-than-draconian prosecution of atrocities from My Lai onward is hardly exemplary.

The ICC's statutes exclude retrospection, so if the United States does not want its troops and officials in the dock at The Hague, then instead of allowing the Pentagon and Jesse Helms to run foreign affairs, the Administration should show that in the future it expects the military to prosecute war crimes with at least a fraction of the fervor with which it currently persecutes homosexuality and adultery.

Failure to ratify the treaty is a signal to the world, and to US citizens, that the Pentagon intends to commit or permit war crimes in the future. Tough on drugs, soft on mass rape and genocide -- that's the message from the Clinton White House.

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