Misguided Fears About An International Criminal Court

Benjamin B. Ferencz

The respected Head of the German Delegation, Hans-Peter Kaul, who was later elected a Judge of the International Criminal Court, taught me a German phrase that aptly describes the U.S. official position at Rome on July 21 1988. “Beleidigte Leberwurst” literally translated means “Insulted Liverwurst.” That quite ridiculous expression describes the angry little boy who, defeated in the game, picks up his marbles and stomps off in a huff. Despite many concessions made to keep the U.S. on the team, America’s defiant opposition succeeded in antagonizing the 120 nations that voted for the International Criminal Court. The United States was seen as a hypocritical bully that wanted to impose its views on the rest of the world. I remembered the stirring pleas at Nuremberg of Justice Robert Jackson and Telford Taylor who inspired the world with their calls for a new rule of law binding on all. I refused to believe that the American public, if properly informed, would reject the noble Nuremberg ideals that had earned the admiration of people everywhere.

The opposition to the ICC was led by Senator Jesse Helms, Chairman of the powerful Foreign Relations Committee. He would frequently begin a hearing by demanding of a witness, “Do you believe in Jesus Christ?” The distinguished Senator, who had been a sports reporter before being repeatedly re-elected by his constituents in North Carolina, apparently didn’t know or care much about the Constitutional requirements for separation of church and state. He was the darling “good ‘ole boy” of the conservative “Religious Right” whose interests he served faithfully and well. In bursts of patriotic fervor, he adamantly declared that no American would ever be tried by a foreign court. It was more than national pride or sovereignty that was at issue. Some of his less articulate supporters, of which there were many, cried out: “Our sov-virginity is at stake!”

Conservatives were determined to kill the new International Criminal Court while it was still in its infancy. The Pentagon, in the business of killing, eagerly joined the fray. They could see no advantage in creating a new and independent tribunal competent to judge the legality of actions by the military. Conservatives were mobilized to alert the public and warn them of the hazards that faced the nation. Helms introduced legislation that threatened economic and military sanctions against any state that cooperated with the court. His “Service Members Protection Act” endangered our service members more than it protected them. As we should have learned at Mogidishu, without an ICC, U.S. soldiers could be dragged through the streets, completely at the mercy of their captors. The Dutch ridiculed the new law as “The Hague Invasion Act,” since it authorized the President to “use all means necessary and appropriate” to free any American arrested on behalf of the Court. Every conceivable argument against the court was trumpeted throughout the land. Congressmen, hearing the clarion call, and understandably eager to show support for our men and women in uniform, rallied around the flag. They paid little, if any, attention to the fact that every argument made against the court was demonstrably false. The wrath of Ferencz was upon them!

I embarked on a one-man campaign, assisted by other concerned citizens, to tell the truth to the American public. I wrote articles, launched e-mail tirades, appeared on radio and TV, and lectured at universities and institutions, but it was no match for the propaganda coming from the Conservatives and the White House. The most persistent complaint was that an uncontrolled Prosecutor could bring unwarranted accusations against Americans, inhibiting our humanitarian or military goals. The truth is that no Prosecutor in human history has ever been subject to more controls than the Prosecutor for the ICC. The U.S. will always be given priority to try its own nationals. The Prosecutor cannot file any charges without approval by panels of judges. The Security Council can suspend prosecutions indefinitely. All proceedings must be open to public scrutiny. The over a hundred parties that have ratified the Statute have complete control. They include many staunch allies of the United States. A frivolous Prosecutor would be fired like a shot. Politicization of the Court would amount to its suicide. The “uncontrolled Prosecutor” argument is made by those who are fools or liars or both. It is a shabby pretext by those who seek to avoid the rule of law.

One day, I received a rather strange and unexpected phone call from Washington. It was from former Secretary of Defense Robert McNamara, whom I had never met. He asked whether I could draft an Op-Ed article for The New York Times which he and I could sign in support of the International Criminal Court. “Mr. Secretary,” I replied, “you must be aware that some people have been calling for your trial as a war criminal for having sent troops to fight in Vietnam even after it was clear that the war was lost. Why do you want to support the ICC?” He explained that if he had known that what he was doing might be illegal, he would not have done it. The Court was therefore important to put the public and officials on notice. I drafted the article which he quickly approved and it was published on the Op-Ed page on December 12, 2000. It urged President Clinton to sign the treaty setting up the International Criminal Court. On Sunday, December 31, 2000, his last day in office, President Clinton instructed U.S. Ambassador David Scheffer to proceed to the United Nations to sign the Rome Treaty. Israel followed suit. Senator Helms was livid. The Chicago Tribune quoted the irate Senator as saying, “I will make reversing this decision... one of the highest priorities of the new Congress; this decision will not stand.” The Senator from North Carolina, backed by the Pentagon, was declaring war on the ICC.

George W. Bush was elected President of the U.S. with the narrowest of margins. His political pollsters attributed the Republican victory to the vote of the Religious Right; Helms was their man. Friends of the ICC had to prepare for heavy weather, regardless of any effort to tell the American public the truth about the ICC. In February 2001, the prestigious American Bar Association, after extensive reviews, concluded that “The Security interests of the United States and of its service members and officials... are better protected if the United States joins the ICC than if we reject it.” A former State Department Legal Counsel and President of the American Society of International Law, assembled ten former Presidents of the Society to publish their conclusion that arguments against the Court were unfounded and unjustified. Democratic Senator Christopher Dodd of Connecticut, whose father Tom served at Nuremberg, and Democratic Senator Patrick Leahy of Vermont spoke out in Congress in defense of the Court, as did a few other courageous Congressmen. But they knew they were whistling in the wind. Even if the “Right Wing” was wrong, a conservative Republican President and a conservative Congress held the reins of power, and they called the tune.

No treaty could become binding without the advice and consent of two-thirds of the Senate. A President’s signature merely reflects an affirmation of support, not a legal obligation. Nevertheless, there was no limit to the rage of Senator Helms and his friends. On June 18, 2001 an Appropriations Act was amended to prohibit any U.S. funds being spent in connection with the ICC. Paying a cab fare to a UN meeting that dealt with the ICC could be illegal. It may have been good politics, but there was no real need for Helms to get so agitated.

On September 11, 2001 two hijacked U.S. passenger airplanes were used by 19 “suicide bombers” to crash into the World Trade Center in New York, causing the death if at least 3,000 innocent persons. Some Arab quarters rejoiced, but most of the world was shocked and outraged. The President declared war on terrorism. Although that sounded to me like declaring war on sin, the Republican Congress kneeled before the Republican President; the self-proclaimed Commander-in-Chief could do whatever he considered necessary to protect the terrified nation. Osama bin Laden, the leader of Al Qaeda, a loose organization of militant Moslem fundamentalists, appeared on world-wide television to boast of the successful attack. President Bush vowed to bring the criminal to swift justice. No mention was made of the International Criminal Court. Six years later, the suspect had not yet been apprehended.

Under its terms, the Rome Statute would only go into effect when, and if, it was formally ratified by at least 60 nations. On April 11, 2002, that number was surprisingly exceeded. There was a joyous celebration at the UN. The seat marked for the U.S. Delegate was empty. The U.S. deliberately flaunted its contempt by its absence. I felt ashamed that my country that was primarily responsible for the Nuremberg trials and had supported so many other international criminal courts, should now turn its back on the momentous occasion being celebrated by so many other nations. Knowing from respected opinion polls that the majority of Americans really favored an international court, I plunked myself into the chair behind the official sign “United States” and gave the V sign for victory. Although I had no official standing, I thought it would be OK since I was sitting down. As a precaution, I vacated the seat as soon as the meeting was called to order. I did not relish the idea of giving my opponents a “photo-op” of a former Nuremberg prosecutor being led out of a UN chamber in chains.

In May, 2002, Helms’ protégé John Bolton, then an Assistant Secretary at the State Department, sent a one-paragraph letter to the UN, declaring, “… the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature of December 31, 2000.” This unprecedented repudiation of a solemn Presidential commitment was another unnecessary slap in the face to the rest of the world. Amnesty International called it “a new nadir of isolationism and exceptionalism.” Richard Dicker of Human Rights Watch referred to it as “an ideological jihad against international justice.” I admit that their descriptions were more dramatic than “Beleidigte Leberwurst.”

Bolton went on a rampage to get nations to agree that they would never send an American to The Hague. If they failed to sign such an “immunity agreement,” all economic and military aid would be severed. In effect, such action would deprive our friends of funds needed to fight terrorists, drug traffickers, and other enemies. Secretary of State Condaleeza Rice, who always struck me as a rather sensible lady, almost had it right when she eventually tried to curb Bolton by warning that we should not adopt policies which would be “shooting ourselves in the foot.” It would be more accurate to say that we were shooting ourselves in the head.