Senator Patrick Leahy (D-VT)
Speech  on the floor of the Senate
December 15, 2000

Mr. President, I rise today to voice my strong support for the International Criminal Court, ICC. Like all Senators, indeed like all Americans, I understand the need to safeguard innocent human life in wartime, at the same time that we ensure that the rights of our military personnel are protected. The Rome Treaty establishing the International Criminal Court will achieve both those goals, and I urge President Clinton to sign the Treaty before the December 31 deadline.

The Treaty was approved overwhelmingly two years ago by a vote of 120 to 7. Since then, 117 nations have signed the Treaty--including every one of our NATO allies except Turkey, all of the European Union members, and Russia. Regrettably, the U.S. joined a handful of human rights violators like Libya and Iraq in voting against it. Only one of our democratic allies voted with us, and it is quite possible that we will end up as the only democratic country that is not a party to the Court.

During the last century, an estimated 170 million civilians were the victims of war crimes, crimes against humanity, and genocide. Despite this appalling carnage, the response from the international community has been, at best, sporadic, and at worst, nonexistent.

While there was progress immediately following World War II at Nuremberg and Tokyo, the Cold War saw the international community largely abdicate its responsibility and fail to bring to justice those responsible for unspeakable crimes, from Cambodia to Uganda to El Salvador.

In the 1990s, there was renewed progress. The U.N. Security Council established a tribunal at The Hague to prosecute genocide and other atrocities committed in the Former Yugoslavia. A second tribunal was formed in response to the horrific massacre of more than 800,000 people in Rwanda.

In addition, individual nations have increasingly taken action against those who have committed these crimes.

Spain pursued General Pinochet, and he may yet be prosecuted in Chile. The Spanish Government has requested Mexico to extradite Richardo Miguel Cavallo, a former Argentine naval officer who served under the military junta, on charges that include the torture of Spanish citizens.

A number of human rights cases have also been heard in U.S. civil courts. In August, 2000, $745 million was awarded to a group of refugees from the Balkans who accused Radovan Karadzic of conducting a campaign of genocide, rape, and torture in the early 1990s. Also that month, an organization representing Chinese students who are suing the Chinese Government for its brutality during the 1989 Tiananmen Square protests, successfully served papers on Li Peng, the former Chinese Premier, as part of an ongoing lawsuit.

They are important steps towards holding individuals accountable, deterring future atrocities, and strengthening peace. But the ICC would fill significant gaps in the existing patchwork of ad hoc tribunals and national courts. For example:

A permanent international court sends a clear signal that those who commit war crimes, crimes against humanity, and genocide will be brought to justice.

By eliminating the uncertainty and protracted negotiations that surround the creation of ad hoc tribunals, the Court will be more quickly available for investigations and justice will be achieved sooner.

International crimes tried in national courts can result in conflicting decisions and varying penalties. Moreover, sometimes governments take unilateral actions, even including kidnapping, to enforce prosecutorial and judicial decisions. The Court will help to avoid these problems.

The Court will act in accordance with fundamental standards of due process, allowing the accused to receive fairer trials than in many national courts.

In the past, when the international community established war crimes tribunals, the United States was at the forefront of those efforts. The performance of the U.S. delegation at Rome was no different. The U.S. ensured that the Court will serve our national interests by being a strong, effective institution and one that will not be prone to frivolous prosecutions.

Why then did the United States oppose the Treaty, despite getting almost everything it wanted in the negotiations? Many observers feel that it was because the Administration could not get iron-clad guarantees that no American servicemen and women would ever, under any circumstances, come before the Court. A related concern was that the Treaty empowers the Court to indict and prosecute the nationals of any country, even countries that are not party to the Treaty.

The legitimate concern about prosecutions of American soldiers by the Court, while not trivial, arises from a misunderstanding of the Court's role.

The U.S. has been successful in obtaining important safeguards to prevent political prosecutions:

First, the ICC is neither designed nor intended to supplant independent and effective judicial systems such as the U.S. courts. Under the principle of "complementarity'', the Court can act only when national courts are either unwilling or unable to prosecute.

Second, the Court would only prosecute the most atrocious international crimes such as genocide and crimes against humanity. The U.S. was instrumental in defining the elements of these crimes and in establishing high thresholds to ensure that the Court would deal with only the most egregious offenses.

Third, the Court incorporates the rigorous criteria put forth by the United States for the selection of judges, ensuring that these jurists will be independent and among the most qualified in world. Further, the Rome Treaty provides for high standards for the selection of the prosecutor and deputy prosecutor, who can be removed by a vote of the majority of states parties.

Finally, the Court provides for several checks against spurious complaints, investigations, and prosecutions. Before an investigation can occur, the prosecution must get approval from a three-judge pre-trial chamber, which is then subject to appeal. Moreover, the U.N. Security Council can vote to suspend an investigation or prosecution for up to one year, on a renewable basis, giving the Security Council a collective veto over the Court.

Because of these safeguards, our democratic allies--Canada, England, France, Ireland--with thousands of troops deployed overseas in international peacekeeping and humanitarian missions, have signed the Treaty.

The Pentagon has, from day one, argued that the United States should not sign the Treaty unless we are guaranteed that no United States soldier will ever come before the Court. In other words ``we will sign the Treaty, as long as it does not apply to us.'' That is a totally untenable position, which not surprisingly has not received a shred of support from other governments, including our allies and friends.

There is no doubt that further negotiations can improve the ICC, but it is unrealistic to expect to single out one's own citizens for immunity, in every circumstance, from the jurisdiction of an international court. If that were possible, what would prevent other nations from demanding similar treatment? The Court's effectiveness would be undermined.

Moreover, as the United States--which has refused to sign the treaty banning landmines, or to ratify the comprehensive test ban treaty, or to pay our U.N. dues--is perceived as acting as if it is above the law, nations may begin to think ``why should we honor our international commitments?'' If the U.S. becomes increasingly isolated, our soldiers will face greater, not less, risk.

Such increasing risk is wholly unnecessary. Our Armed Forces are known globally for their strict adherence to international humanitarian law and conventions governing the conduct of a military in wartime. Signing the Rome Treaty would be the clearest indication possible that we are proud of this record, and are working every day to uphold it.

Mr. President, I too am troubled by the precedent of exerting jurisdiction over non-party nationals. While this is a key component of the Treaty which prevents rogue nations from shielding war criminals from the Court's jurisdiction by refusing to become a party, it could also invite mischief in the future. What if, for example, a dozen states were to join in a treaty that asserts jurisdiction over non-parties for the explicit purpose of targeting the citizens of the United States and its allies? Will the Rome Treaty set a precedent that could make this more likely?

In fact, there is nothing to prevent that from happening today, and it is highly unlikely that such treaties would achieve legitimacy. They would almost certainly not become recognized parts of international law and convention. While it is essential that we do everything possible to protect the rights of American citizens, we also want an effective Court. Indeed, there are almost certainly to be circumstances when we would support ICC jurisdiction over non-party nationals.

Critics argue that the United States should ``block'' the ICC. They are misinformed. That is not an option. The requisite 60 countries are going to ratify the Treaty, and the Court will have jurisdiction over citizens of non-parties, whether or not the U.S. signs.

The real issue is whether we sign the Treaty and enable the U.S. to continue to play a crucial role in shaping the ICC, ensuring that it serves its intended purpose of prosecuting the most heinous crimes--not the U.S. Air Force pilot who mistakenly bombs the wrong target, a tragic but inevitable consequence of war. It is instructive, for those who raise the specter of political prosecutions, that the Tribunal for the Former Yugoslavia--which, like the ICC, the U.S. had a key role in shaping--declined to investigate allegations of war crimes resulting from NATO bombing of Serbia. We will be in a far better position to protect the rights of American citizens if the Court must answer to the U.S. for its actions.

We can sign the Treaty and make clear that if the Court strays from its intended purpose, we will take what steps are needed, from refusing to ratify to withdrawing from the Treaty. I sincerely doubt, however, that will become necessary. A key part of the Court's ability to function is its legitimacy. As others have said, ``the politicization of the Court would quickly end its relevance.''

We all know that it is simply not possible to be part of an international regime and get absolutely everything one wants. Nay sayers can always invent implausible scenarios that pose some risk. The key question is: do the benefits of signing the Rome Treaty and throwing our weight and influence behind it, outweigh the risks? I believe the answer is clearly yes.

Mr. President, the Treaty provides an adequate balance of strength and discretion to warrant signature by the United States. On the one hand, the Court is strong enough to bring war criminals to justice and provide a deterrent against future atrocities. On the other, there are important checks in place to minimize the risks of sham prosecutions of American troops. Yet, without the active participation and support of the United States--the oldest and most powerful democracy on Earth committed to the rule of law--the Court will never realize its potential.

I agreed with President Clinton when he stated that, "nations all around the world who value freedom and tolerance [should] establish a permanent international court to prosecute, with the support of the United Nations Security Council, serious violations of humanitarian law.''

Those words reminded me of the President's speech at the United Nations six years ago, when he called for an international treaty banning anti-personnel landmines. Two years later, when many of our allies and friends were negotiating such a treaty, the Administration, bowing to the Pentagon, chose to sit on the sidelines. They assumed, wrongly, that without U.S. support the process would run out of steam, and they even tried, at times, to undermine it.

Only in the final days, when the Administration finally realized the mine treaty was going to happen with or without the U.S., did they make several "non-negotiable'' demands. Essentially, they said "okay, we will sign the treaty, as long as it does not apply to our landmines.'' Predictably, that was rejected. Today, 138 nations have signed that treaty and 101 have ratified, including every NATO member except the United States and Turkey, and every Western Hemisphere nation except the United States and Cuba.

One would have thought we would have learned from that experience. The fact is that the United States can no longer single-handedly determine whether an international treaty comes into force. If we do not sign the Rome Treaty, there is a strong possibility that the Court, its prosecutors and judges will develop from the beginning an unsympathetic view towards the United States and its official personnel. That is especially so if we end up opposing the Court and its legitimacy. Do we want a Court that views itself in opposition to the United States? Or do we want a Court whose prosecutors and judges are selected with the influence of the United States, and a Court that must answer to the United States, as its most significant state party, for its actions? The answer should be obvious to anyone.

Mr. President, it is unacceptable that the world's oldest democracy--the nation whose Bill of Rights was a model for the Universal Declaration of Human Rights, the nation that called for the creation of a permanent, international criminal court and did so much to make it a reality, has shrunk from this opportunity. The President should sign the Rome Treaty.

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