Global Policy Forum

By David Scheffer

The Bush administration's decision to abandon the 1997 Kyoto Protocol on global warming may soon be followed by withdrawal from another global imperative. Well-meaning American patriots appear determined to derail the International Criminal Court Treaty, which they fear will be misused against the United States. But declaring war on the treaty or sacrificing our leverage in further talks would undermine U.S. interests. Having signed the treaty on behalf of the United States on December 31st, I believe the United States is now well armed to improve the treaty regime, help prevent its misuse, and achieve the international justice Americans so firmly uphold.

It has not helped that the House of Representatives voted 282 to 137 on May 10th to adopt the American Servicemembers' Protection Act, a deceptively-labeled bill designed to scuttle the International Criminal Court Treaty with punitive counterpunches against other governments and measures to insulate U.S. military personnel from the court's reach. Last year, the State, Defense and Justice Departments opposed the legislation because of its unconstitutional infringement on executive authority and its isolationist provisions.

During 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 clarity and precision, because there must be a surer footing in the 21st Century to bring to justice perpetrators of heinous crimes like genocide, crimes against humanity, and war crimes.

The alternatives-ad hocism or nothing at all-will burden future generations with inefficient and costly means to manage accountability for atrocities. The existence of the international court will spur national courts to do the job they should be doing to bring war criminals to justice and thus avoid international litigation. We built into the treaty procedures by which countries with strong legal systems can try their own citizens and require the court to back off.

Critics have charged that there are inadequate due process protections in the treaty. But the U.S. delegation, stacked with career government lawyers, negotiated procedures and definitions of crimes consistent with our constitutional and military law practice. Among those protections are rights to a speedy and public trial and to confront witnesses. Contrary to rumor, neither double jeopardy nor the use of anonymous witnesses is permitted.

The fact that the treaty requires trial by judges is not surprising in an international criminal court that merges common and civil law practice. It is well-settled extradition practice to accept trial without jury outside the United States, and for these crimes qualified judges might be preferred to international jurors. The difficulty the treaty's procedures arguably present under the U.S. Constitution is if the United States were to become a party to the treaty and an American citizen commits on U.S. territory genocide, crimes against humanity, or war crimes that meet the court's rigorous test of admissibility-a highly unlikely event.

The reality is that our own prosecutors would pounce on that individual so fast the international court would never have a right under the treaty to investigate him. We successfully negotiated the procedures that grant our own justice system maximum discretion to seize a case against any U.S. citizen, even if the crime is committed overseas, and if merited indict and prosecute him before an American jury.

I spent years seeking full immunity from the court for our military forces and their civilian leaders in negotiations that sometimes seemed the theater of the absurd. I was given nothing to offer in return for an absolutist carve-out that other governments, particularly our closest allies, found incredulous. There continue to be legitimate concerns about the remote possibility of an American soldier being pursued by the court even if the United States has not yet become a party to the treaty. But short of 100 percent protection, we successfully negotiated into the treaty regime an impressive body of safeguards that critics overlook in their zeal to trash the treaty.

The Bush Administration deployed only a small technical team to monitor recent talks in New York on all-important supplemental agreements to the treaty. It unfortunately sacrificed, for the moment, the critical leverage the United States should employ in its new status as a signatory nation. Too much is at stake, as the court probably will be set up soon. We will far better protect our soldiers and citizens by fully engaging in this often-tedious struggle for law than we will if we appear intimidated and either sit on the sidelines or futilely hector our allies.

The United States also should take unilateral steps. Critics and supporters of the court should find common cause in amending federal codes to ensure that crimes under the treaty can be fully prosecuted in U.S. courts. Current law is simply out-dated and may deprive us of our first line of defense.

When the court begins to operate, the president should appoint a commission of experts to monitor federal and military courts exercising our rights under the treaty to investigate and prosecute our own. Demonstrating our competence and willingness to exercise national obligations will discourage scrutiny by the international court.

The Pentagon should nail down the protections our Status of Forces Agreements already provide consistent with the treaty. Even as a non-party, we can negotiate special agreements with other governments that would prevent any American being surrendered to the international court from foreign jurisdictions without our consent. As a signatory state, we are now in a much stronger position to negotiate such safeguards.

The international criminal court projects American values of justice and of human rights that are desperately needed in atrocity zones across the globe. If we walk away from the court, we will be seen as walking away from those values.

About the Author: The writer, a Senior Fellow at the U.S. Institute of Peace, was Ambassador at Large for War Crimes Issues and head of the U.S. delegation to the International Criminal Court talks during the Clinton Administration. The views expressed here are solely his own.