Global Policy Forum

Robert S. McNamara and Benjamin B. Ferencz (*)

With the stroke of a pen, President Bill Clinton has a last chance to safeguard humankind from genocide, crimes against humanity and the ravages of war itself. He must simply sign a treaty, finalized in Rome in 1998, to create a permanent International Criminal Court. If he signs the treaty before Dec. 31, the government does not have to ratify the treaty at this time. After that date, any country has to both ratify and sign the treaty to become a member. This is no small consideration, since Senator Jesse Helms, chairman of the Foreign Relations Committee, has promised to block any attempt to ratify the pact.

Why does Mr. Helms object to a permanent international criminal court? He and others are worried that an unchecked international court could infringe on basic American constitutional rights for fair trials. For instance, they want ironclad guarantees that the court would never try American soldiers. Pentagon officials fear that Americans might be falsely accused of crimes, thus inhibiting our humanitarian military missions.

These worries are unfounded. The tribunal of 18 world jurists only have jurisdiction to charge those who commit specific crimes that outrage the international community as a whole. Under the treaty, no one can be convicted without clear proof of intent to commit the illegal act. The prosecutor is subject to judicial and budgetary controls that promise both competence and objectivity.

And most important, each nation retains the primary right to try its own nationals in a fair trial under its own laws. There are some crimes, like sexual slavery and forced pregnancy, that the treaty covers, which are not specifically enunciated in our own country's military laws and manuals. Robinson O. Everett, a former chief judge of the United States Court of Appeals for the Armed Forces, has recommended incorporating these crimes into our federal laws, assuring that any American military personnel charged with a crime could be tried by American courts.

Genocide is universally condemned but there is no universal court competent to try all perpetrators. The Nuremberg war crimes trials, inspired by the United States and affirmed by the United Nations, implied that "never again" would crimes against humanity be allowed to go unpunished.

Today, we have special courts created by the United Nations Security Council that have very limited and retroactive jurisdiction. For instance, war crimes tribunals are now coping with past atrocities in Yugoslavia and Rwanda. But these tribunals are hardly adequate to deter international crimes wherever they occur.

The president must help deter future atrocities. At the United Nations and elsewhere, he and Secretary of State Madeleine Albright have repeatedly called for an international court to carry forward the lessons of Nuremberg. Now, he has a chance to take action. More than 100 nations, including all our NATO allies, have already signed. Some 25 nations have ratified; others are well on the way. The court cannot begin trying cases until at least 60 nations have ratified.

If President Clinton fails to sign the treaty, he will weaken our credibility and moral standing in the world. We will look like a bully who wants to be above the law. If he signs, however, he will reaffirm America's inspiring role as leader of the free world in its search for peace and justice.

* note on the authors:

Robert S. McNamara was, Ssecretary of Defense under Presidents John F. Kennedy and Lyndon B. Johnson.

Benjamin B. Ferencz was a prosecutor at the Nuremburg war crimes trials. Back To Text