The United States has formally renounced involvement in a treaty that sets up the world's first permanent war crimes tribunal. Most U.S. allies support the new court and human rights organizations have criticized the U.S. decision.
The treaty creating the International Criminal Court dates from 1998, and former President Clinton added his signature shortly before leaving office. However, Mr. Clinton said he considered the treaty "significantly flawed" and urged his successor, President Bush, not to submit it to the Senate for ratification.
The administration did not, and Monday, it went even further. U.S. officials notified United Nations Secretary-General Kofi Annan that the United States considers itself no longer bound in any way to the "purpose and objective" of the treaty.
While other nations, including Russia and China, have not ratified the agreement, the United States is the lone dissenting voice among its major allies. Britain, Canada, France and Germany are among the 66 nations that have ratified the treaty and a number of other countries are set to approve it. The tribunal would prosecute war crimes, genocide and crimes against humanity, if individual states are unable or unwilling to pursue the prosecutions.
U.S. ambassador-at-large for war crimes Pierre-Richard Prosper said the idea of the court is "noble." However, in the view of the Bush administration, the treaty lacks protections against politically-motivated prosecutions.
Mr. Prosper also said there are occasions when an international political body such at the U.N. Security Council, rather than a prosecutor, will be in a better position to assess whether to bring war crimes charges. "Either a cross-border conflict [or] internal conflict where you have other states that are allies or foes," he said. "So there's a political context that always needs to be judged at the same time that you're moving forward on accountability. It is our view that these issues need to be vetted or debated as you move forward and the Security Council of the U.N. is the best place for that as opposed to essentially leaving the fate of a region to a single individual who can say, you know, I don't care about the regional stability or whatever the question may be. I will act in such a manner."
Kenneth Roth, executive director of Human Rights Watch, says there are two problems with Mr. Prosper's argument. "First," Mr. Roth said, "the rest of the world sees it as a transparent ploy by the United States to make sure that no American is ever prosecuted because the U.S., through its veto on the Security Council, could basically block any proposed prosecution of an American."
Mr. Roth adds that other permanent members of the U.N. Security Council could also block prosecutions, meaning that any friend of Russia, China, Britain, or France could ask those countries to veto prospective actions.
Both the Clinton and Bush administrations have expressed concern that U.S. troops serving as peacekeepers overseas could be tried without the protections of the U.S. constitution.
Supporters and critics of the international body dispute whether the rights of the accused will be fully protected.
Mr. Prosper said the International Criminal Court does not have the checks and balances that are seen, for example, in the U.S. legal system. "It's not a matter of overriding prosecutorial discretion, but there is a check. The way our government is designed," he said, "if you have a rogue prosecutor, eventually that rogue prosecutor can be removed."
Mr. Prosper says local district attorneys can be voted out of office, judges can be impeached and federal prosecutors can be removed by the President. In the new international court, three judges must approve a decision to prosecute, but Mr. Prosper does not believe that offers enough protection against frivolous prosecutions.
Another critic of the International Criminal Court, a legal specialist on international treaties, believes there is a fundamental problem with the treaty. David Rivkin, Jr. has held senior posts in the administrations of former Presidents Bush and Reagan. He fears that the International Court will discourage individual nations from pursuing effective measures to prevent or punish war crimes.
"There's a fundamental question of whether an institution like this is likely to promote international peace and stability," he said. "To the extent that it does not deter real rogues; to the extent that it creates an impression that it can be effective in that role; to the extent that it makes it less likely that law-abiding nations will use force to promote peace and stability and deal with aggression, then it's failing the task it set out to achieve."
The treaty creating the International Criminal Court will become effective July 1 and only alleged crimes that occur after that date are subject to prosecution. The new body will begin operations next year in The Hague. Supporters like Kenneth Roth of Human Rights Watch say it will carry out its work, with or without United States' involvement. But, he said he views the U.S. withdrawal from the process as short-sighted.
U.S. official Pierre-Richard Prosper says the United States remains committed to bringing war criminals to justice. But it prefers to work through national legal systems and in exceptional cases through special courts, like those that the U.N. Security Council created after the Bosnian war and Rwandan genocide.
He said, on this issue, the United States is exercising its right to express a dissenting opinion. "That does not mean that we are withdrawing ourselves from the international community," Mr. Prosper continued. "It does not mean that we are moving toward isolationism. It just means that on a particular issue, we have a disagreement. The way the world works is we need not not only the United States, but any country we need not agree all the time."
Administration critics say the United States must reengage in the treaty process before its concerns can be addressed. Kenneth Roth notes that in some cases major violators of human rights have not been brought to justice because there is no international court to prosecute them. He says they include Idi Amin of Uganda, Cambodia's Pol Pot and Saddam Hussein in Iraq.
Ambassador Prosper says the United States will continue to work with individual nations, such as Sierra Leone, in bringing to justice those who commit war crimes. He notes that an American was recently named chief prosecutor in the trials for rape, mutilation and mass murder that occurred in the West African nation during its civil war.