Just weeks after the Clinton administration reluctantly signed on to support establishment of a permanent international war-crimes court, the Bush administration appears willing to let the so-called International Criminal Court die on the vine.
But the world needs the ICC, the first permanent institution established to prosecute crimes such as genocide, war crimes (e.g., the systematic slaughter of civilians), and crimes against humanity, such as rape. The new court would follow on the heels of two ad hoc tribunals to prosecute war crimes in the former Yugoslavia and Rwanda, as well as hybrid national/international courts currently being established in Sierra Leone, Cambodia, and East Timor.
Although these institutions represent important advances, a permanent court would be a marked improvement. It would make it easier to investigate and build cases against war criminals while the atrocities are occurring, thereby providing a stronger deterrent to potential perpetrators.
When the Clinton administration signed the Rome Statute establishing the ICC in late December, it said it was doing so to continue negotiations and change the parts of the treaty it dislikes. Although the US played a key role during prior negotiations over the ICC, it refused to sign in Rome two years ago because of a clause that would give the ICC "universal jurisdiction" - a principle the US rejects. This clause would allow the ICC to prosecute crimes perpetrated anywhere, even if countries do not ratify the treaty and agree to its jurisdiction. The US is concerned that its soldiers may be subject to "unwarranted," politically inspired prosecutions while serving on peacekeeping missions abroad.
The Bush administration has no official policy on the International Criminal Court, though Secretary of State Colin Powell indicated in his confirmation hearings that he would not recommend that President Bush ask the Senate to ratify the treaty unless it contained guarantees that American troops would not be subject to politically motivated prosecutions.
The ICC will fail without American support, and other nations must reach out and address US concerns. One way is to consider allowing UN Security Council oversight of the court's prosecutor. This idea has been suggested before, but flatly rejected by human rights groups and other nations. This compromise would appease Republican fears and pave the way for American support of the court.
There are four reasons why US muscle is critical to the ICC's success:
* Only America can provide the leadership necessary to ensure that the ICC goes after the "big fish" who perpetrate war crimes across the globe. Without the leadership of the world's only superpower, the court will lack the authority to pursue the leaders who continually foment instability.
For example, American resolve was critical to the decision of the Security Council last August to establish a special court to prosecute war criminals in Sierra Leone. Without American leadership, it will be difficult ever to use the court to go after leaders such as Saddam Hussein, who continues to abuse the rights of Kurds in Iraq.
* Without American money, it is doubtful the court will have sufficient resources to be effective. The US currently contributes around one-quarter of the UN's operating costs.
* American intelligence is crucial to the success of international justice, as the experience of the Yugoslav and Rwanda tribunals has shown. For example, without the information provided by American officials, the Yugoslav tribunal would not have had sufficient evidence to indict President Slobodan Milosevic for war crimes.
* Finally, American fears are already rippling in other waters. To date, 139 countries have signed the statute and 29 of the required 60 have ratified. But in recent weeks, the same fear of "unwarranted" prosecutions has aroused debate in other nations.
A few weeks ago, Britain's "shadow" foreign secretary, Francis Maude, a Tory, argued that the ICC could allow for politically inspired prosecutions of British soldiers. Last week, the Tories sponsored an amendment to a bill that would allow Britain to ratify the International Criminal Court. The amendment would exempt British soldiers from prosecution. It was defeated by the Labour majority, but because the vote on the final ICC bill might occur after the next parliamentary election, in which the conservatives are expected to gain seats, many fear British ratification might also be in doubt.
Human rights groups fear that Security Council oversight of the ICC will threaten the credibility of the court by implying it is a tool of the powerful to prosecute the weak. And yet the history of war crimes prosecutions in the past decade suggests the opposite.
Although the Security Council established or cooperated with other nations in their establishment of tribunals, it did so at the request of leaders of so-called powerless nations such as Rwanda and Sierra Leone. In these cases, powerful and weaker nations worked collectively to prosecute war crimes.
In the same way, the Security Council can work with the ICC to prosecute and deter serious atrocities. Although human rights groups might perceive this as hard to accept, the alternative is far worse. That alternative is an institution rendered feckless by America's nonparticipation, similar to the League of Nations.
To avoid repeating that disaster, other nations should endorse a stronger role for the Security Council and win America's support for the International Criminal Court.
Michelle Sieff is a PhD candidate in political science at Columbia University and a writer for www.crimesofwar.org.
(c) Copyright 2001. The Christian Science Monitor