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Great Seal logo David Scheffer, Ambassador at Large for War Crimes Issues
and Head of the U.S. Delegation to the UN Preparatory Commission
for the International Criminal Court

Statement before the Congressional Human Rights Caucus,
Washington, DC, September 15, 2000
Blue Bar rule
Thank you, Mr. Chairman. I am very honored to appear before the Human Rights Caucus today to discuss two very important documents: the Rome Treaty for the International Criminal Court and the American Servicemembers' Protection Act of 2000, which is currently before Congress.

This is a critical period of time for both documents and for U.S. policy with respect to them. One hundred and twelve governments have signed the Rome Treaty and 20 of them have ratified it. Sixty ratifications are required before the treaty enters into force. There are important negotiations that will continue at the United Nations in New York regarding supplemental documents for the Rome Treaty, and the United States will need to remain fully engaged in those talks in the coming months.

There remains a lot of confusion and, frankly, misrepresentations about U.S. policy toward the ICC in the popular media as well as in some of the scholarly works I have read. Overall, there appears to be a common perception that the United States has always stood and continues to stand in opposition to the creation of a permanent International Criminal Court. This perception, of course, is false. The Clinton Administration engaged in the negotiations for an ICC, which formally began in 1995, strongly supporting the establishment of an ICC. We demonstrated that support by being intensively engaged in the negotiations and producing a large number of papers commenting on and proposing text for the emerging draft treaty. President Clinton on six occasions publicly expressed his support for the establishment of a permanent International Criminal Court. From the very beginning, however, we never intended that the treaty's personal jurisdiction would extend as far as the Rome Treaty finally established under Article 12. To argue that our position on personal jurisdiction reflected an underlying opposition to the whole concept of a permanent International Criminal Court or to the Rome Treaty itself is a deeply flawed argument. We have remained on the front line every day since the first UN session in early 1995 negotiating to support the establishment of a permanent court that the United States can participate in with confidence and in a manner that is compatible with our national and international security responsibilities. The American people expect that of us and we have remained faithful to their interests.

Since Rome, the United States has remained deeply engaged in the Preparatory Commission sessions. We led the negotiations on the Elements of Crimes and provided the working draft for those negotiations. We also remained deeply engaged with the negotiations on the Rules of Procedure and Evidence and were satisfied with the leadership of Australia, Canada, and France in those talks. On June 30th of this year, we joined consensus in support of both of those work-engine documents of the Court. Those are not the actions of a government retreating from the treaty or waging an opposition campaign against it. We are determined to remain engaged every step of the way to represent important U.S. interests in the process and to advance the cause of international justice. But that cause will fall far short of its potential unless the United States can be, at a minimum, a good neighbor to the Court when it is established. The ICC will need the United States if it hopes to be a truly effective institution.

Some of our post-Rome concerns about the ICC statute have been addressed in the Elements of Crimes and the Rules of Procedure and Evidence. A couple of other issues are slated for consideration at later stages in the PrepCom process. Those are encouraging developments for the United States and for the ICC. But we have a remaining fundamental difficulty with the Rome Treaty that we sincerely wish to resolve so that, at a minimum, the United States can be a good neighbor to the ICC regardless of whether we achieve party status or not in the near future.

That fundamental difficulty is the exposure of our armed forces, which are deployed by the hundreds of thousands around the world at the request of governments and to ensure international peace and security, to prosecution before the Court even before the United States becomes a party to the Rome Treaty. The possibility that a U.S. soldier fighting to halt genocide could be accused by the other side of war crimes and brought before the Court before we have even joined the Court is untenable to the American people. We are at a vital crossroads in world history, reflected in the Millennium Summit last week, when the resolve of the international community to confront evil is being tested every day. In any military action, we have to accept the possibility that things will not go as planned -- missiles or bombs may go off target, and human error could result in unintended destruction. But fear of being accused of war crimes for honest mistakes should not prevent us from acting. We are sometimes criticized for not confronting that evil immediately, for letting it fester too long until too many innocent civilians are slaughtered by fearless, thuggish leaders of tyranny. We should be determined to confront the perpetrators of human misery, but we must do so recognizing the risks and the necessary balance that must be struck between our pursuit of international justice and our common quest to achieve international peace and security and respond to humanitarian calamities.

The United States is not shirking from prosecuting its own, as some falsely claim. We fully recognize the significance in the Rome Treaty of the provisions on complementarity that we inspired and helped draft. We know how important this logical deferral to national investigation and prosecution is in the treaty and we are very conscious of the views of other governments and non-governmental organizations and scholars about the sufficiency of complementarity in the treaty framework. We are currently negotiating a proposal that would not amend the Rome Treaty but would permit a procedure that still requires a nation that is not yet a party to the treaty to act responsibly and bring its own to justice. If a nation, whether a party or not to the Rome Treaty, acts irresponsibly and wages massive crimes against its own people or those of another nation, then we have no interest in permitting such a nation to enjoy any special privilege; let that nation's war criminals stand trial before the ICC. We want to achieve the objectives that inspired the Rome Treaty and indeed to do so as a non-party until such time as we can join the treaty.

The proposal that we floated last March has benefited from critical comment by other governments and non-governmental organizations, and we are prepared to adjust that proposal to 1) eliminate its reference to the Security Council, and 2) revise its wording so that only non-party states acting responsibly in the international community and honoring the principle of complementarity can invoke a privilege of non-surrender of its nationals to the Court. Many have asked me how this can possibly be done. If you will allow me one moment of personal reflection, I have faced that kind of question innumerable times in war crimes work for 8 years, in negotiating rooms and at atrocity sites across the globe. If there is one approach to war crimes work that I have employed consistently, it is that imagination and pragmatic innovation ultimately can achieve common objectives in international justice. There is always a way to find a workable answer to a difficult problem if we collectively labor over it long enough and do so recognizing that international politics just like domestic politics is the art of compromise. The spirit of this process needs to be recognized and practiced not only by governments but also by non-governmental organizations and even a few scholars.

Reason and common sense must prevail if we are to strike a proper balance for U.S. participation in the work of the International Criminal Court. Those who still argue that the Clinton Administration is seeking to oppose the Rome Treaty and destroy its objectives are deeply mistaken. As I said to the New York Times in June:

The world needs a permanent international criminal court. We need it because the perpetrators of these heinous crimes must be brought to justice, and we need it as a deterrent over the generations that follow. The international system simply cannot continue to deal with these problems in an ad hoc manner indefinitely.

There is much to gain by having the United States on board as a partner to the ICC. We are so close, it would be a colossal mistake for purist notions about the Rome Treaty to kill off the opportunity for the United States to become a true champion of the Court and to provide it with the kind of assistance and cooperation that it so clearly will need to be an effective engine for international justice.

Mr. Chairman, now I wish to deliver a few remarks about the American Servicemenbers Protection Act of 2000. The Administration opposes this legislation. In July, I testified along with Defense Department Undersecretary Walt Slocombe to emphasize our opposition to H.R. 4654 before the House International Relations Committee. The legislation is severely misguided and above all else undermines fundamental U.S. national security interests. It will not change a single word of the ICC Treaty or any of its supplemental documents. The bill, if enacted, would prohibit U.S. cooperation with the International Criminal Court, even if that cooperation would help a) convict a war criminal such as a Milosevic or a Saddam Hussein, or b) clear a U.S. citizen of alleged wrongdoing. The bill also would make the United States a safe haven for war criminals attempting to escape ICC jurisdiction, by precluding extradition.

H.R. 4654 infringes on the President's constitutional authority as Commander-in-Chief and to conduct foreign relations. It is counter-productive not only because of its direct impact on critical negotiations relating to the International Criminal Court but also because H.R. 4654 would seriously damage U.S. national policy objectives. It would hold national security and foreign policy interests hostage to the fate of our relationship with governments that support the ICC and to the willingness of other members of the Security Council to immunize our armed forces personnel from ICC jurisdiction.

As the Department has explained in letters to Chairman Gilman and Representative Gejdenson dated June 30, 2000, current law prohibits use of federal funds to "support" the International Criminal Court. But this bill is more sweeping and harmful to particular defense and foreign affairs programs. It would prohibit military aid to any country that has ratified the ICC Treaty, with exceptions only for NATO and major non-NATO allies. Moreover, by requiring that the UN Security Council grant immunity to U.S. personnel to participate in UN-authorized military activity, the legislation could effectively prevent U.S. military engagement on issues of critical national security concern.

The bill would have these detrimental consequences without providing the Administration with any new authority or any increased ability to protect U.S. service members from prosecution. Rather, it would tie the hands of the President as Commander in Chief and risk harming important U.S. interests by its inflexibility.

The latest round of ICC meetings ended on June 30. We made important progress at those meetings. But we have a very tough struggle ahead as we advance toward the next session in late November. We are deeply concerned that in addition to imposing unnecessary and dangerous restrictions on national security decision-making the legislation prejudges the outcome of ongoing negotiations on the protection objectives we are seeking to achieve. For this reason it would undermine the efforts of the U.S. negotiators and diminish the likelihood of obtaining those additional protections for U.S. service members.

In my prepared remarks before the House International Relations Committee, I paid considerable attention to the Department of Justice's advice regarding the Constitutional infirmities of this legislation. I will not repeat those points in my oral remarks here, but I strongly recommend them to you for your attention. Also, a statement delivered to the Committee on International Relations by former Legal Adviser Monroe Leigh on behalf of the American Bar Association on July 25, 2000, presents an excellent analysis of Constitutional issues relating to the Rome Treaty for the International Criminal Court.

Section 4 of H.R. 4654 would prohibit specific forms of cooperation with the Court until the United States ratifies the ICC Treaty. The President already has that authority. But we anticipate there will be instances in which it will be in the national interest to respond to requests for cooperation even if the United States is not a party to the ICC Treaty. We may decide that an international investigation and prosecution of a Pol Pot, a Saddam Hussein, an Idi Amin, a Foday Sankoh, or some other rogue leader who has committed or is committing heinous crimes that no civilized government or people could possibly condone or acquiesce in would be in the national interest of the United States to support.

In the ICC negotiations, the U.S. Government has pressed other governments hard to accommodate our need to protect U.S. personnel from being surrendered to the ICC to stand trial while the United States is not a party to the treaty. I must be able to offer, in exchange for the protection that we are seeking, the ultimate cooperation of the United States with the ICC when it serves our national interests while our country is a non-party to the ICC Treaty.

Section 5 of H.R. 4654 states that the President should use the voice and vote of the United States in the UN Security Council to ensure that the Council permanently exempts U.S. military personnel from criminal prosecution before the ICC in connection with UN peacekeeping operations. But Section 5 ignores the President's responsibility to weigh national security considerations in deciding when and how to deploy U.S. military personnel under a wide and often unpredictable range of contingencies. The bill ties the President's hands in a way that can severely undermine this nation's ability and will to protect our national interests.

Section 6 is unnecessary, as we have already ensured in Articles 72 and 73 of the ICC Treaty that we will have complete control as a non-party or as a party to the ICC Treaty over the transfer of classified national security information to the ICC.

Under Section 7 of H.R. 4654, U.S. military assistance globally would be held hostage to the ICC Treaty regardless of U.S. national interests, regardless of whether our service members are protected through some means other than an Article 98 agreement and regardless of what circumstances will arise in the future. This provision can only undermine our national interests. The President already has this authority if he chooses to use it to advance national security objectives. The legislation requires the use of that authority in a way that is most likely to undermine relevant national policies.

Section 8 would authorize the President to use all means necessary and appropriate to free U.S. personnel being detained or imprisoned by or on behalf of the ICC. We would note that the ICC will be located in The Hague, The Netherlands. So, in a curious way, Section 8 contemplates an armed attack on The Netherlands, a close NATO ally of the United States. It is, to put it bluntly, an alarmist provision that only complicates our ability to negotiate our common objective of protection from prosecution. Under the Constitution, the President already has the authority to protect U.S. personnel wherever they are located in the world.

Section 9 of H.R. 4654 requires a report evaluating the degree to which each existing status-of-forces agreement or other similar international agreement protects U.S. personnel from extradition to the ICC under Article 98 of the ICC Treaty. Although we could provide such an assessment, the major issue lies in re-opening SOFAs to negotiation in order to seek full protection from extradition through a SOFA provision. Section 9 requires the President to transmit to Congress a plan for amending existing SOFAs or negotiating new international agreements in order to achieve the maximum protection available under Article 98. Re-opening SOFAs could encourage host countries to insist on renegotiating other existing provisions.

Section 10 requires a report with respect to military alliances to which the United States is a party. This provision needlessly subjects our alliance command arrangements to factors pertaining to the ICC Treaty and thus suggests that, once again, our national security interests will be held hostage to the ICC Treaty. U.S. service members under operational control of foreign military officers are still under U.S. command and the administrative control of the United States. More importantly, the risks facing U.S. service persons are the same once they are in the territory of a state party to the ICC, regardless of the command or operational relationship they have with foreign military officers who are nationals of countries that are parties to the ICC. The degree of risk may vary based upon any existing status of forces agreement or other similar international agreement, as was discussed under Section 9.

The Department of Justice advises that both Sections 9(b) and 10(b) would impermissibly intrude on the President's constitutional powers over the nation's diplomatic relations and his authority as Commander-in-Chief. Because the Constitution vests authority over the nation's diplomatic negotiations in the President, the President and his subordinates must have discretion to decide whether to enter into negotiations with foreign governments and to control the content of those negotiations. The requirement in these provisions that the President submit to Congress plans for amending certain agreements with foreign nations implies a Congressional mandate that the President negotiate such changes; so construed, they impermissibly infringe on the President's exclusive responsibility under the Constitution to determine the form and manner in which the United States will maintain relations with foreign nations.

Many of the provisions of H.R. 4654 achieve exactly the opposite of the result intended and would seriously harm our own national security and foreign policy interests. The legislation would cripple our negotiating leverage to achieve the common objective of protection of American service members from surrender to the ICC. Section 5 could make it impossible for the United States to engage in critical multinational operations. Section 7 could weaken essential military alliances. The bill raises fundamental constitutional issues and would seriously impair any future Administration's ability to pursue national security objectives.

Mr. Chairman, our country has very important business to conduct now in the continuing UN talks on the International Criminal Court. The American Servicemembers' Protection Act will only cripple our efforts and undermine U.S. national interests. We respectfully urge Members of Congress to stand down on this legislation and help us get our job done in New York.

Thank you, Mr. Chairman.

[end of document]

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