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International Criminal Court
With Ruth Wedgwood
Senior Fellow, International Organizations and
Law
Council on Foreign Relations
Friday, July 12, 2002; 2 p.m.
EDT
The International Criminal Court was established in 1998 by
treaty at a Rome conference. The treaty has been signed by 138
countries and ratified by 76. The tribunal has jurisdiction
over cases of genocide, war crimes and crimes against
humanity. Recently, the U.S. dropped the demands that "the
U.N. Security Council grant Americans serving in U.N.
peacekeeping missions permanent immunity from the
international war crimes tribunal." According to the Bush
administration, there is concern that U.S. officials and
troops overseas would be under scrutiny from "frivolous
investigations and trials."
"U.S. officials said they are seeking a temporary exemption
from prosecution that would buy the United States time to
negotiate bilateral accords and military agreements barring
individual governments from surrendering U.S. nationals to the
International Criminal Court." Read the full story, U.S.
Drops Demand for War Court Immunity (Post, July 11).
Ruth Wedgwood, senior fellow of International
Organizations and Law at the Council on Foreign Relations, was
online Friday, July 12 at 2 p.m. EDT to discuss the
International Criminal Court.
Wedgwood's expertise includes international law and
terrorism, law of armed conflict, war crimes trials and the
United Nations and peacekeeping operations. She was professor
of international law and diplomacy at Johns Hopkins University
and a professor of law at Yale University Law School. She was
also formerly part of the Secretary of State's Advisory
Committee on International Law and the former advisor to the
Secretary of Defense on international law issues in the war on
terrorism.
Her publications include "Toward an International Criminal
Court?" (Council Policy Initiative, co-author, 1999),
"American National Interest and the United Nations (Co-author,
1996) and "The Revolutionary Martyrdom of Jonathan Robbins"
(1990). She has also written articles in the American Journal
of International Law, International Herald Tribune, the
Washington Post, and the New York Times.
Editor's Note: Washingtonpost.com moderators retain
editorial control over Live Online discussions and choose the
most relevant questions for guests and hosts; guests and hosts
can decline to answer questions.
Burke, Va.: Could Americans be held accountable for
alleged crimes committed before the court was established.
Also, is our capitulation to be subject to the court just a
show or do you expect genuine involvement?
Ruth Wedgwood: Americans can't be held accountable
for acts before the court is established (the starting date
for the court is July 1, 2002). Few if any countries would
have signed up to the Rome ICC treaty if the court had
retrospective jurisdiction ... for many countries have
concerns about their past behavior, and have pledged to be
good only in the future.
As for the court's possible
attempt to take jurisdiction over the soldiers and political
leaders of third party countries that have not joined the
treaty -- one of the purposes of the current confrontation in
the Security Council between the U.S. and its allies is to
show that we would indeed take great umbrage at such an
attempt to stretch the court's jurisdiction.
Washington, D.C.: What types of penalities would
this court impose? Would they be individual, or to the nation
from which the individual came from? I'm assuming that capital
punishment is not among the choices, only imprisonment and/or
fines.
Ruth Wedgwood: The ICC could impose any penalty up
to life imprisonment. The death penalty is not provided for
... most European countries and many others as well have ruled
out the death penalty in their human rights treaties.
Sentences would be served in the prisons of countries
that have volunteered their services to the Court.
One of
the practical issues for the ICC is to assure adequate
"conditions of confinement" -- i.e., non-horrific jails. Since
international institutions like to show that all regions are
taken seriously, this could be a real problem ... in poor
countries and others as well, the prison conditions can be
beyond imagination.
Chicago, Ill.: Please clarify a couple of things
about the ICC treaty I seem to be missing. First, isn't the
court's jurisdiction limited to nationals of participating
nations? If the U.S. hasn't ratified the treaty, then aren't
Americans exempt from prosecution under it? Second, the ICC's
defenders keep advancing the supposed US-friendly safeguard
that the ICC will act only when nations either can't or won't
act on their own against their nationals. But doesn't this
merely beg the question -- if the US is concerned about
frivolous prosecution, how is it reassuring to Americans to be
told that the ICC will only prosecute when our legal system
refuses to investigate or prosecute us (as would happen if the
case were frivolous)? It would seem that, by definition, the
ICC will assert jurisdiction every time a frivolous case is
brought against an American citizen, or are we to carry out
farce investigations of frivolous charges just to keep the ICC
at bay? Thanks.
Ruth Wedgwood: The court's claim of authority
extends to the nationals of countries that have refused to
join the treaty. The only requirement is that the country
where an alleged crime occurred or the country of the alleged
perpetrator's nationality must have consented to the treaty.
Ironically, this may end up exempting the very
situations that the court was first designed to police. In a
civil war, such as Rwanda or Chechnya, one would have to get
the permission of the territorial state. The court is most
likely to take jurisdiction, by this measure, over
international conflicts where the target state wants to
complain about the way the war was fought. (E.g., a future
version of Kosovo, where Belgrade complained about the NATO
air campaign.)
The ICC proponents have argued that
there is a protection against international investigation,
called "complementarity." The ICC can't enter a situation
unless the national justice system is "unable or unwilling
genuinely" to investigate and prosecute the matter.
Trouble is, by definition we'll be unwilling to
prosecute an American pilot who has faithfully carried out a
military mission in accordance with orders that we believe are
legal. One example might be the standard strategy of disabling
an adversary's electrical grid, in order to suppress his
anti-aircraft capability. Some have argued that such "dual
use" targeting -- since electricity also serves civilian
functions -- should be banned. The U.S. thinks it's legal.
What the ICC will think remains to be determined. But
complementarity may not provide real protection.
Washington, D.C.: Who can be charged by an
international criminal court?
Ruth Wedgwood: Any military personnel or civilian
leaders in the chain of command who are believed to be guilty
of war crimes, crimes against humanity, or genocide. The crime
of aggression may be added to the court in seven years' time.
As noted above, the court is claiming that third party
nationals can be charged, even if their country has refused to
join the treaty.
Arlington, Va.: I don't understand. If the British
got immunity so that their people could go to Afghanistan, why
is it out of the question, even for Canadians, for us to have
it, too? why even have such a court since the process in the
Hague now seems so flawed and slow?
Ruth Wedgwood: The British did indeed negotiate a
"status of forces" arrangement with Kabul, so that their
peacekeepers in Afghanistan would not be subject to local
trial. The argument made by ICC supporters is that trial by
the ICC will have guarantees of fairness that may not be
available in local courts.
Truth to tell, though, most
overseas deployments in the last fifty years have been
accompanied by status of forces agreements, nicknamed "SOFA's"
-- providing that offenses connected to "official acts" should
generally be tried by the contingent's own military justice
system.
So, too, the U.N. has always left troop
discipline up to the national contingent. So the U.S. request
in regard to Bosnia is not so unusual against this background.
Washington, D.C.: U.S. concerns that troops would be
subject to "frivolous investigations and trials" echo almost
exactly the language used by the most notorious living war
crimes defendant -- Slobodan Milosevic -- who the U.S.
expended tremendous capital (politcal, diplomatic and
military) to bring to the Hague. To me, this seems glaringly
hypocritical. How can the U.S. justify trial for Milosevic but
refuse to join and recognize a permanent court with
international jurisdiction?
Ruth Wedgwood: The law of armed conflict is indeed
universally applicable, and responsible militaries train their
troops in accordance with its standards.
I'd make a
distinction, though, between applying "anti-massacre" law and
other finer points of military conduct. There are good faith
differences of view among responsible militaries on how to
define the limits of military targeting (e.g., is a television
transmitter really a military target? the answer was clear in
1945, but some NGO's would now like to have a different
result.) So, too, judgments about proportionality can differ
-- what is the acceptable range of unavoidable damage to
civilian objects in the course of targeting a military asset?
We expect a clarity in criminal law, out of fairness
to individuals, that may not always be available in these
closer questions. And it raises the question whether
international law should be made by states or by law
professors.
Mt. Lebanon, Pa.: So who can bring a case to this
court? Is it just for criminal matters? If I'm unhappy with
Fidel Castro, for instance, can I sue him in this court?
Thanks much.
Ruth Wedgwood: You can't sue civilly in this court.
It is just for criminal prosecutions, although there can be
some monetary forfeitures as part of the sentence.
Fidel will be liable for future crimes, especially if
Cuba ratifies the treaty.
London, England: Hi Ruth
A hypothetical -- Amnesty International has finally
acknowledged that the current wave of Homicide Bombers in
Israel are "war crimes" and "crimes against humanity." Israel
has claimed documentation and evidence that Arafat has been
involved in the commission of these crimes. The EU is the most
vehement supporter of this new "court." Can Arafat be brought
before the court if he should venture to, say, London? And how
would one go about it?
Ruth Wedgwood: The ICC prosecutor can start cases
based on a referral from the U.N. Security Council, by
complaint of a member state, or on the prosecutor's own
initiative.
In real life, the ICC can only take on a
few conflicts and situations. The choice should be made
according to some defensible theory of criminal justice, but
in practice, some expect politics to intrude -- even if only
through a judgment of what the court can practically hope to
accomplish.
The phrase "victor's justice" has an
obverse -- "justice's victors" -- and in real life, you need
countries willing to support a judicial effort with
diplomatic, economic and military support, to give teeth to
its judgments. Thus, the claim of universality is likely to
look better on paper than in real life.
NGO's and
individuals are free to submit information to the prosecutor
for his or her consideration, in beginning cases.
Los Angeles, Calif.: What's your position in
relation to global corporations making political contributions
to foreign political campaigns?
Ruth Wedgwood: This is outside the court's evident
jurisdiction and too complicated for a quick response.
Obviously, global corporations may have legal personality in a
number of countries, and an answer will depend in part on the
particular country's campaign financing laws.
Alexandria, Va.: Belgian politicians keep trying to
put Israel's Ariel Sharon on trial.
What sorts of pressure will anti-Israel countries such as
Belgium, France and Sweden be able to put on the World Court?
Isn't this court primarily funded by European countries?
Ruth Wedgwood: I hope that each of the mentioned
countries will not act in a way that could be considered
"anti-Israel." The court will be funded by assessments voted
by the participating treaty parties, in a political "assembly
of states parties." That assembly can't earmark contributions
for particular purposes, but the prosecutor will have to
submit an overall justification of funds.
You'll be
interested to know that the Belgian court of appeals recently
ruled that the Belgian magistrate responsible for the Sharon
investigation could not use so-called "universal jurisdiction"
to indict persons who are not in Belgium.
Arlington, Va.: Who would preside over the
international criminal court?
Ruth Wedgwood: Judges elected by a vote of the
treaty parties. There will be 18 judges, chosen from lawyers
and judges with backgrounds in international law and criminal
law. One missing component is the desirable presence of judges
who have some specific background in military law.
The
president of the court will be chosen by the judges
themselves, from among their own number.
Alexandria, Va.: Are there other countries who feel
the same as the U.S.?
Ruth Wedgwood: Hard to say ... there are a number of
countries that, at the ratification stage, are looking at the
court with great care. Thailand, China, India, Russia, amongst
others, are taking their time.
Arlington, Va.: Can corporations or entities be
accused in the ICC?
Ruth Wedgwood: Very interesting question! The
court's statute speaks of "persons" who are investigated or
prosecuted. In American law, corporations and partnerships CAN
be counted as legal persons. At Nuremberg, corporate leaders
were indicted in their personal capacity for the use of slave
labor.
There was no targeted discussion at Rome, to my
knowledge, about the criminal liability of corporations ..
Washington, D.C.: Am I correct in understanding that
if an American (or other defendant) is tried before the court,
he could be shipped off to serve a prison term in any of the
member countries' prison systems? Does this include the
prisons of Sierra Leone, Nigeria, and others whom Human Rights
Watch and our State Department have condemned for their prison
conditions?
Ruth Wedgwood: It's up to the court to decide where
prison sentences will be served. Presumably, the court would
demand that a prison system satisfy the minimum international
standards for humane confinement. But there always is a worry
in the UN system that each region should get some share of the
responsibility and contracts. And theory can vary from real
life practice in the administration of prisons, as we all
know!
Somewhere, USA: How have the international press
looked at the United States' decision to shieled our troops
from a foreign court system?
Ruth Wedgwood: The international press (at least the
European press) has been generally critical of the US
position, describing it as reflexive isolationism or being
"above the law." I'm not sure that the press understands the
number of close questions that arise in the law of armed
conflict. Europe is also used to a greater degree of
multilateral integration, through the standard setting of the
European Union. And Washington would argue that we often have
to undertake the less agreeable security tasks.
Washington, D.C.: Can the little Pacific Island of
Nauru seek prosecution of the leaders of developed nations for
failing to curb greenhouse gas emissions which contribute to
global warming and rising sea levels, which in turn threaten
to wipe out the island? Isn't this genocide?
Why else would some little speck in the ocean have joined
this court?
Ruth Wedgwood: There is a war crime concerning
environmentally unfriendly acts -- which consists of
"intentionally launching an attack in the knowledge that such
attack will cause ... widespread, long-term and severe damage
to the natural environment which would be cearly excessive in
relation to the concrete and direct overall military advantage
anticipated."
But simple greenhouse gas emissions
isn't an "attack", so an island country would have to seek
other remedies concerning carbon producing countries.
Smaller countries often join treaties because it
permits international visibility. Also, the potential use of
nuclear weapons has been a hot-button issue in the South
Pacific, particularly after France's nuclear testing in the
region.
Arlington, Va.: We know what the Bush
administration's thoughts are, but how do/have past
administrations or Congress reacted to the courts? Is there an
ideological split as far as who are for and who are against?
Ruth Wedgwood: President Clinton signed the treaty
on the last possible ate (Dec 31 2000), but said at the time
that he would not send it forward to the Senate for
ratification until and unless changes were made.
The
expressed concerns have been the same between the Democrats
and Republicans, although the Bush Administration has been
willing to express the differences with our NATO allies in a
more forceful way.
Mt. Rainier, Md.: I am disappointed but not
surprised at the Bush administration's current stance vis a
vis the World Court. It makes us look arrogant to the rest of
the world to say that "they" need a cop but we don't. Yes, we
should police our own people -- but if we don't then someone
else should. They are worried about false allegations, but the
allegers would have to prove a crime, would they not? We would
not have to disprove a non-crime (that's harder in law than it
is in English even!)
Ruth Wedgwood: Pentagon folks will be tell you that
the process of countering an investigation can be enormously
time-consuming and diverting... witness the special prosecutor
statute that we all thought would be harmless.
There
is a deeper question as well -- who should set the fine-tooth
standards for the law of armed conflict ... states with
significant security responsibilities, or lawyers who may lack
much understanding of military campaigns and alternatives.
One example of a possible change that might gall
southern countries -- what if one said that night-fighting is
forbidden unless the soldiers wear night vision goggles. This
would avoid "shooting in the dark", but southern countries
would say they can't afford the equipment. The law of war is
interwoven oftentimes with issues about effective power, as
well as humanitarian concerns.
St. Louis, Mo.: I'm stuck on the basic hypocrisy of
our position regarding the international court. We try to bury
our opposition to it in details -- this guarantee or that
hypothetical problem -- but it seems much more basic than
that: We're the most powerful country in the world; we don't
feel particularly vulnerable to the actions of others (and so
we don't feel the need for a court to protect us); and we
don't want anybody limiting our action. Courts are always set
up to protect the weak from the strong, in a sensible and fair
way. In this case, we're the strong and we want no part of it.
Your comments?
Ruth Wedgwood: The reaction to the ICC may depend on
how you see the American security role in the world. We're the
ultimate guarantor of balance in Northwest Asia and in
Eurasia. We police the Korean peninsula, and the Taiwan
Straits and the freedom of shipping through the Indonesian and
Filipino archipelagos, as well as providing nuclear
deterrence. We are called upon to do things that Europe has
declined to adequately invest in, such as intercontinental
transport, overhead intelligence, and air power. To some
folks, the court may resemble an attempt to set up an
international chain of command over American military assets.
London, England: Thanks for your response to my
original question. Regarding your last point: NGO's and
individuals are free to submit information to the prosecutor
for his or her consideration, in beginning cases.
So basically President Bush is correct. A prosecution
could, in fact, be initiated on the desire (dare one say
whim?) of a single prosecutor?
Ruth Wedgwood: Well, a prosecutor's decision can be
appealed, on grounds of jurisdiction or so-called
complementarity ... so one has to get the concurrence of a
chamber of judges as well.
International civil
servants are generally serious people, so it's not going to be
"whim" -- but views of the law certainly do differ ...
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