Battle Lines for an International Criminal Court

The battle lines are being drawn between those who believe in the rule of law and those who do not. A powerful and respected American voice has been raised to support the establishment of the International Criminal Court. It rebuts the ill-informed and misguided views of those who denounce the proposed court as a threat to American interests and military personnel. It deserves the widest possible dissemination by those who support the ICC.

Monroe Leigh has been Legal Adviser to both the State and Defense Departments. He is a past President of the American Bar Association and the American Society for International Law and is an outstanding authority. On Feb. 21, 2001, he wrote to Chairman Hyde, of the House Committee on International Relations, that the Bill introduced by Senator Jesse Helms (The American Service Member's Protection Act S.2726, June 14, 2000) as a preemptive strike against the ICC, (and opposed by the State and Defense departments) was replete with misconceptions. Nonetheless, the Senator had managed to obtain signatures from, a dozen distinguished American leaders, including ex- Secretaries of State, CIA and National Security Advisers, in opposition to the ICC. Leigh, ever the gentleman, said the signatories were simply misinformed. In fact, assured Leigh, the ICC would offer greater protection to Americans in military service than now exits at home or abroad.

Leigh warned that persistent efforts by US negotiators to exempt American military personnel from legal restraints that other nations were being asked to accept could only exacerbate relations with our allies. To rebut the signatories assembled by Helms, ten former Presidents of the America Society of International Law, including its Honorary President Stephen Schwebel, added their names to the Leigh memo. These very distinguished American jurists - in their personal capacities - concluded that the US should accept the Treaty for an ICC "without change in the text."

To top it off, Monroe Leigh wrote a COMMENT that will appear in the next issue of the prestigious American Journal of International Law (Vol.95.No.1, A. 2001). He analyzes the arguments put forward by those who would reject the ICC - described by Leigh as "the most important international juridical institution that has been proposed since the San Francisco Conference of 1945." He notes that under existing international law the sovereign of the territory where a crime is committed has jurisdiction to try the captured offender. The notion that US nationals cannot be tried for war crimes if their government is not a party to the ICC treaty is not supported by existing international law as recognized by the highest US courts.

Strident demands for exceptionalism can only reinforce suspicions about American hegemonic ambitions. Leigh notes ICC provisions that give national courts absolute priority to try the accused in a fair trial. He ridicules "the specter of the politically motivated Prosecutor" and spells out the many safeguards that will prevent abuse and protect the rights of the accused. He dismisses the criticism that the ICC might deny due process to US service personnel as "totally misplaced." His conclusion: "In sum, the United States can most effectively protect its national-security interests, as well as the individual interests of US nationals, by accepting the Statute of Rome - better sooner than later."

Many others, of course, have spoken out in favor of the Court, including the excellent survey of legal experts by the American Academy of Arts and Sciences.. The conclusion of that comprehensive study, articulated by Harvard Law Professors Abram Chayes and Anne-Marie Slaughter: "The United states should be taking the lead in shaping these new institutions. It is not too late." Opponents of the ICC do not speak for the United States. Leigh, a conservative "establishment" man of impeccable credentials, has raised a respected voice in opposition to unsound harangues coming from uninformed adversaries. (I am grateful to Heather Hamilton of the World Federalist Association for drawing my attention to the Leigh correspondence.)

Despite the organized and vocal opposition to the ICC, President Clinton directed Ambassador Scheffer (who represented the US at the UN with distinction) to sign the Treaty at the last moment. It was an important symbolic act - showing that the outgoing Administration favored the goals of the ICC, despite need for improvements. Opponents of the ICC howled with anger and threatened to erase the signature - a rather bizarre suggestion. The US now sits silent at the UN deliberations. The new Repblican Administration will have to be persuaded that the ICC is in our national interest. Let the voice of the informed public now be heard

Bravo, Monroe Leigh, Bravo!