“THE COURT REPRESENTS one of the most important advancements in human-rights protection since the adoption of the Universal Declaration of Human Rights,” Kenneth Roth, executive director of Human Rights Watch, wrote to the U.S. president last month.
Clinton signed the Rome Treaty on Dec. 31, just hours ahead of the deadline for endorsement. His signature was largely symbolic since the Senate is not expected to ratify the agreement anytime soon. That, however, has done little to stop the controversy over his decision to support a document already approved by more than 130 other countries.
Richard Dicker, director of the International Justice program at Human Rights Watch in New York City, spoke with NEWSWEEK’s Arlene Getz about the debate.
NEWSWEEK: Why is this court so important?
Richard Dicker: Because it is the most important international tribunal established since the Nuremberg court that tried the Nazi leaders. What has been lacking up to now is a permanent mechanism that could hold responsible individuals accused not just of your garden-variety human-rights violation—that’s not what this international criminal court is for. It is to hold responsible in court those accused of the worst atrocities under law: genocide, crimes against humanity which are widespread, or systematic slaughter of helpless civilians, massive rape, widespread amputation as a means of terror. That’s what this court is aimed at trying to remedy. There has not been such an institution since the [1948] Universal Declaration of Human Rights and the Geneva Conventions of 1949. That’s why this is such a significant development.
Then why do critics call it a betrayal of American interests?
I can’t speculate as to the motive or the thinking of the critics. I think some are engaged in a campaign of disinformation. Some are opposed for ideological reasons—they distrust international institutions, be it the United Nations or others. They distrust a multilateral approach to problem-solving.
Opponents of the treaty argue that the court would put U.S. military personnel at risk of political prosecutions. How valid are these concerns?
Some have voiced concerns that are not illegitimate. Some in the Department of Defense, for example, were concerned that this court could become a political vehicle to advance an anti-American agenda. I don’t think that’s a baseless or unfounded concern. We live in a highly political world. There are many groups out there that have a stridently anti-American agenda. That’s not the source of disagreement. The source of disagreement is how you solve that problem. Human Rights: Breakthrough on War Crimes:
So how do you solve that problem? What safeguards are there against frivolous prosecutions?
Most of the critics have wanted to solve this problem by including an automatic guarantee that U.S. citizens would be exempted from prosecution from this court. [But] you can’t have a credible and legitimate court that includes an exemption for certain individuals on the basis of their nationality. Numerous safeguards and checks and balances were included in the court’s treaty—that will determine the way that the court actually functions.
First and foremost is the fact that this court will be a court of last resort. This means it is designed to step in in those situations where the national court systems are dysfunctional, in places like Sierra Leone, Liberia, Iraq. This court will have no role to play in situations where the civilian and military justice works reasonably well. That is at the core of this treaty. Critics of this treaty tend to ignore or dismiss that for their own reasons.
That sounds as if only those who come from countries experiencing turmoil or transition will be subject to the court. Doesn’t that risk aggravating tensions between the developed and developing world?
I would look at it a bit differently. For those countries who have developed judicial systems, there is a very, very small possibility that a case involving one of their nationals would get before the court. In terms of the developing world, I think that the court’s existence will be a stimulus—in some cases a source of encouragement, in other cases as a source of pressure—for national courts to do a better job in actually investigating the cases. That’s a good thing. It will encourage more investigation, more prosecution on the national level. From a human-rights perspective, that’s the objective that we want.
What happens if a country rigs a local trial to acquit one of its citizens?
Important question. The answer to that is contained in the treaty. The court would become involved only if the efforts on a national level could be proven by the international court prosecutor to be a sham, to be guided by an intent to shield individuals at the national level from criminal prosecution. If it were simply an inept trial, or maybe they didn’t do the best job they could have, that kind of trial would not trigger the authority of this international court.
What one group sees as a war crime, another may see as a protection of its national interests. Who defines what constitutes a war crime?
These are all definitions that come from the Geneva Conventions, [which] are basic laws of war crimes that the United States and approximately 165 other states have not only signed, but ratified. The idea that these are war crimes that have been concocted out of thin air or have been put together for the first time is simply either disinformation or wrong information. Also, Article 8 of the [International Criminal Court] treaty says the court will have jurisdiction over crimes that were committed as part of a plan or policy or large scale commission of such act. The American negotiators wanted that in the treaty to preclude court authority over isolated incidents of war crimes, like the My Lai massacre.
Can you give some examples of the kinds of cases such a court would have heard over the last 30 years?
Certainly the deaths of hundreds of thousands of Cambodians during the period of the Khmer Rouge. The genocide in northern Iraq in 1988 carried out by Saddam Hussein that slaughtered 120,000 Iraqi Kurds. The exterminations of countless hundreds of thousands of indigenous people in the Guatemalan highlands in the 1970s and ’80s. This court is going to focus on the most serious, the most egregious, the most unadressed cases of war crimes and crimes against humanity.
President Clinton signed the treaty last Sunday. He said, however, that he would not submit it to the Senate for ratification in its present form, and he also advised President-elect George W. Bush not to submit it in its present form. Is the Senate likely to approve it?
No. There’s no expectation that the Senate will ratify this treaty for a number of years. The U.S. Senate has quite a poor record when it comes to ratifying basic international human-rights treaties.
Then why did Clinton sign it?
There were several [reasons] for the president’s signature. One is symbolic, but symbolism can be very important. It was saying the United States by and large supports this effort to strengthen justice internationally. I think that’s such an important signal to send when you had 137 other governments worldwide that had signed this treaty. [It] sends a message that justice is supported by the most powerful nation in the world.
Practically, it enables the United States under the Bush administration to continue participation in negotiations involving issues that are of real importance to this government.
What’s Bush likely to do about this treaty?
I can’t predict what he will do. I believe that the Bush administration is careful enough and far-sighted enough to realize that President Clinton’s signature increases the options of the Bush administration.
If President Clinton had not signed this treaty, then the Bush team would have been left on the outside looking in. Its influence and its credibility would have been diminished. I believe the Bush administration will take a fresh look at this treaty, and they will decide to try and shape the culture of this court.
The court will only come into existence when 60 countries have ratified the treaty. That’s expected to happen by 2002. Where does that leave the United States?
I don’t think there ever was really much expectation that the U.S. Senate would be among the first 60 countries ratifying this treaty. By virtue of signature, the U.S. is signaling its basic support for the court. It can be a family member in good standing and positioned to help shape and influence the court even though it is not one of the first 60 that has ratified the treaty. It will have observer status. It will be able to contribute as an observer. That’s a good thing for the court and a good thing for the United States.
Can a citizen from a nonsignatory country still be prosecuted by the court?
This is the problem the Pentagon had with this treaty. This court will have authority to prosecute citizens of states that haven’t ratified the treaty. But that’s a standard feature of every treaty dealing with hijacking and terrorism. For example, U.S. courts have prosecuted Lebanese nationals for hijacking offenses even though Lebanon had not ratified the antihijacking treaty. That’s nothing new, nothing exceptional. You cannot in advance exempt people on the basis of their nationality and still have a court that has any legitimacy.
Who’s going to pay for the court? The United Nations?
Yes and no. The financing of the court is a matter that’s going to be negotiated this year. That’s why it’s important that the U.S. remain involved in the negotiations, to help influence and shape these decisions. Essentially the court will be financed by contributions coming from the states that ratify it. The U.N. will make some contribution that will diminish over the years as more and more countries join.
Where will the court be located?
In The Hague in the Netherlands.
Who will serve on it?
Eighteen judges, a prosecutor and a deputy prosecutor. Those individuals will be elected, not appointed, by states that have ratified the treaty for one-time-only terms of nine years. There is a term limit here.
Will the court be able to try citizens from nonsignatory countries?
A state that has not ratified this treaty does not assume any obligations to cooperate with it. What we would hope is that there would be sufficient diplomatic pressure, as we saw with Lockerbie.
What happens when it’s the leader of a country who is accused? Those like Serbia’s Slobodan Milosevic or, say, former Ugandan leader Idi Amin?
This court is indeed intended to try the leaders of a country. It’s not aimed at a corporal or a captain. This court is aimed at the Idi Amins and the Milosevics. Not at American military personnel.
What about fears that the court will erode a country’s national sovereignty?
This court was created by more than 120 governments after a four-year negotiation. These governments, include the United Kingdom, France, Russia, China, the United States, Germany, Canada [and] other states who value their national sovereignty. The treaty creating the court is a very carefully crafted balance between respect for national sovereignty on the one hand and the imperative for justice on the other.
