Fourteenth Waldemar A. Solf Lecture in International Law: A Negotiator's Perspective on the International Criminal Court

• Author: Ambassador David J. Scheffer
• Pages: 01

MILITARY LAW REVIEW

Volume 167 March 2001

FOURTEENTH WALDEMAR A. SOLF LECTURE IN INTERNATIONAL LAW1

A NEGOTIATOR'S PERSPECTIVE ON THE INTERNATIONAL CRIMINAL COURT

AMBASSADOR DAVID J. SCHEFFER2

Thank you, Colonel Lederer, both for the introduction and for the opportunity to address such a distinguished audience of military lawyers, faculty, and other guests. I also want to thank Brigadier General Thomas Romig for his hospitality and encouragement to be here today. Lieutenant Colonel Tia Johnson, the Chair of your International and Operational Law Department, merits special praise for her hard work to bring me here for the Solf Lecture.

One of the most dynamic fields of international law today is the law of armed conflict, or what is increasingly referred to as international humanitarian law and international criminal law in multilateral negotiations and in scholarly treatises. As JAG officers, you above all others recognize the importance of the U.S. military's role in developing the law of armed conflict and in complying with it. We are all guided by a remar

ably rich tradition of American engagement in the development and enforcement of the law of armed conflict. Well-trained forces that understand the law of armed conflict will demonstrate professionalism and compliance that cannot be seriously questioned. The lawyers who train and deploy and fight with our soldiers, sailors, and airmen are a vital line of defense. Judge advocates must know, with precision, the law of armed conflict, and they must protect their commanders throughout the cycle of operations and in any operational environment. That is a very tough job for which I believe you deserve our respect and our full support in every possible way. I have always told your superiors to sign me up for any testimony before Congress to increase your salaries and benefits. Believe me, it is a humbling experience for this lawyer to stand before so many professional military lawyers who shoulder so much responsibility.

During my tour as Ambassador-at-Large, we drew upon your profession's heritage daily as we supported the work of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, negotiated the establishment of the Extraordinary Chambers in Cambodia and the Independent Special Court for Sierra Leone, and assisted with establishing credible mechanisms of justice to respond to atrocities in East Timor, Sri Lanka, the Great Lakes region of Africa, Kosovo, Iraq, and other war zones. I am proud to have had JAG officers work for me in the Office of War Crimes Issues in the State Department and on the U.S. delegation to

the ICC talks. One of them, Lieutenant Colonel Michael Newton of the U.S. Army, a former instructor here, joins us today.

My subject today is the permanent International Criminal Court, which does not yet exist but will, within probably a few years, and thus will deeply influence much of your work as judge advocates. In approaching this opportunity, I struggled with a more classic legal analysis of the Rome Treaty regime that will govern the International Criminal Court and some general propositions that speak to the purpose and consequences of the Court. While I will emphasize some key legal points today, I also want to elevate your own thinking about this issue to its larger context in international politics and international security.

I spoke publicly often about the ICC as head of the U.S. delegation to the United Nations talks on the Court from 1997 until last month, and before then as deputy head of the delegatio n.You can access most of my remarks that are on the public record and in the State Department's Web site,3 now under "Archives," probably to the satisfaction of some of my critics on the right. Since I had droves of critics on the left as well through the years, you can appreciate that I sometimes considered myself a lone warrior on this subject: someone who walked a fine line between our deeply held concerns about the impact the ICC may have on American service members and our firm resolve to lead in the application of international justice and the enforcement of the laws of war. Building, achieving, and then advancing an inter-agency consensus on ICC issues were tasks that consumed a significant portion of my job. It became common practice that I devoted far more time debating and achieving consensus within our own government, even while international negotiations were underway, than was required of any of our foreign negotiators. There was no agency I listened to more carefully, and represented under the most difficult negotiating circumstances, than the Department of Defense, including therein the Joint Chiefs of Staff. Judge advocates and Defense lawyers populated my delegation; indeed no other delegation included so many military counsels as did the U.S. delegation. They made critical contributions and protected U.S. military interests every step of the way.

The Rome Statute of the International Criminal Court was finalized on July 17, 1998.4 The treaty embodying the Rome Statute will enter into force when sixty states have ratified it, and I will henceforth refer to it as the Rome Treaty. One hundred and thirty-nine states have signed the Rome Treaty; of those, twenty-nine have ratified it. The ratifiers are our allies and friends, including France, Germany, Italy, Spain, Belgium, Norway, Canada, Finland, Ghana, Iceland, Austria, New Zealand, and South Africa. Many other states are moving towards ratification, including the United Kingdom, Switzerland, the Netherlands, Ireland, Chile, and Australia. Russia signed the Rome Treaty last September. The United States signed the Rome Treaty on December 31, 2000, the last possible day the treaty permitted signature, after which any non-signatory state would have to accede to the treaty. Iran and Israel also signed the treaty on December 31st. The significant states that did not sign the Rome Treaty are Japan, China, India, Pakistan, Indonesia, Ethiopia, and Saudi Arabia, and such outcast states as Iraq, North Korea, Cuba, Libya, Myanmar (or Burma), and Afghanistan.

The U.S. decision to sign the Rome Treaty was and remains controversial. I strongly believe that President Clinton's decision was the right one. That may come as a surprise to those who followed my public statements and negotiating positions since 1995, because I often articulated the Clinton Administration's serious concerns about flaws in the Rome Treaty, particularly the flaw that military and civilian personnel of a non-party to the treaty could be ensnared by the Court's jurisdiction without the nonparty's consent. But we worked that problem very hard during the negotiations over the Rules for Procedure and Evidence and the Elements of Crimes, which were adopted by consensus at the Preparatory Commission on the ICC last June, and we continued to work it at the November-December 2000 session of the Preparatory Commission.

Anyone who analyzes the Rome Treaty without also examining the Rules and Elements will reach flawed conclusions about the manner in which the ICC will be governed. That is why I speak of the "treaty regime," meaning the Rome Statute, the Rules, the Elements, and the other supplemental documents that are now being negotiated in the Preparatory Commission in New York. Still on deck in New York are the Relationship Agreement between the United Nations and the ICC, privileges and imm

nities for the Court, financial regulations and rules, the headquarters agreement between the Court and The Netherlands, the all-important rules of procedure of the Assembly of States Parties, and the trigger, definition, and elements for the crime of aggression. All of these supplemental documents contain critical provisions of direct relevance and opportunity for U.S. interests, and they all offer the chance to enhance the overall effectiveness and universal acceptability of the ICC. We ignore them at our own risk.

The dilemma we had to wrestle with late last year was whether we best confronted the treaty's remaining flaws, and I emphasize "remaining" subsequent to our work in the Rules and Elements negotiations, as a signa-tory working the issues hard from within the tent, or as a non-signatory protesting the Court's legitimacy. Knowing full well that the United States has a significant impact when engaged in such negotiations, I recommended signature and other senior officials joined me in that recommendation. Other views pointed towards non-signature as the preferred policy decision. The President deliberated with a full set of views and recommendations, and a lot of tough questions were asked. In fact, the difficulties and risks of the Rome Treaty were emphasized and described in great detail to him.

Well-meaning patriots, including some members of Congress, appear determined to derail the Rome Treaty. That would be folly. Declaring war on the treaty or just monitoring further talks with studied indifference, which appears to be the Bush Administration's chosen course for the present, would undermine U.S. interests. As a signatory, the United States now is well armed to improve the treaty regime and advance our commitment to international justice.

In the Clinton Administration we negotiated this controversial treaty, as well as the Rules of Procedure and Evidence and Elements of Crimes that we insisted be added to it, for worthwhile objectives. America's advocacy of the rule of law abroad as well as at home needs backbone, and a permanent court that we lead in shaping will advance justice. In the twenty-first century, perpetrators of heinous crimes like genocide, crimes against humanity, and war crimes must be prosecuted and punished. We proudly stand for that proposition as a nation born out of the struggle for freedom, for democracy, and for a rule of law that protects and does not trample the legitimate rights of all humankind.

Cynics overseas, and some at home, argue that this...