The half-century of United States' dominance of international politics has often been characterized as "benevolent" hegemony, or hegemonial "leadership" (Nye, Bound to Lead; Lundestad, East, West, North, South). The underlying assumption is that, contrary to the typical hegemonial power, the United States has used its predominance in the system to promote "public goods," such as democracy, human rights and free trade (Brilmayer, American Hegemony). The selective pattern of participation and advocacy demonstrated by the United States on human rights, however, reveals why it is widely perceived as the primary obstacle to the progress and success of human rights on the cusp of the new millennium.

Human rights emerged as a theoretical concept and political tool in the aftermath of WW II as numerous international treaties cultivated the legal responsibilities of the sovereign states to honor its citizens' inherent human rights. The (1948) Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of Genocide demarcated the beginning of this new era. Fifty years of "promoting" human rights has produced a plethora of human rights treaties across the political landscape.

The Cold War with its heavy ideological underpinnings obscured an interesting pattern-while the United States was invariably the first to advocate human rights treaties, it was one of the last to ratify them. Although Presidents have signed many of the "core" treaties, the U.S. Senate has, more often than not, refused to ratify them. The Genocide Convention, for example, was only ratified during the Reagan Administration after a forty-year delay. The United States has joined only one of the treaties based on the Universal Declaration (the Covenant on Civil and Political Rights), and then only during the Bush Administration. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), hailed as the "international bill of rights" for women, has been stuck in the Senate Foreign Relations Committee for years. The only two countries choosing not to ratify the Rights of the Child are Somalia and the United States. The United States conspicuously refused to join in the recent and highly publicized Landmines Treaty.

The turn of the century has witnessed the international community's dramatic transition from the "promotion" of human rights to the "protection" of human rights by creating the institutions and authority necessary to oversee that citizens' rights are respected by the sovereign states. Not only have significant and successful courts emerged on the regional level (in Western Europe and Latin America), but the Security Council also created international tribunals for addressing atrocities in Former Yugoslavia and Rwanda. These courts stand as major achievements in international enforcement. In fact, the United States strongly supported the realization of all these court and firmly advocated the need for an international criminal court throughout the Cold War-until it became a plausible reality.

International Criminal Court

With the end of the Cold War, the United Nations General Assembly requested a draft of an International Criminal Court (ICC). A designated Preparatory Committee reworked its original form (1995-98) and the resulting Rome Conference (15 June to 17 July of 1998) met to consider the draft document which contained 116 articles in 13 section including nearly 1400 brackets (indicating unresolved content or language). The "Committee of the Whole" divided itself into 13 subgroups to address the relevant problems in each section.

The most dynamic political and legal presence at the Rome Conference was the "Like-Minded Group." This drew upon middling and small states (primarily from Europe and Latin America) as well as the "Coalition for the Establishment of an International Criminal Court" (CICC), an energetic and effective alliance of Non-Governmental Organizations. (Note: Plugging in INTERNATIONAL CRIMINAL COURT for a web search will bring up both the "Campaign for the Establishment of the ICC" and the "Coalition for the ICC" sites which provide general background and the latest ICC information as well as relevant commentary from Human Rights Watch and Amnesty International). Using the Coalition to Ban Landmines as its model, the CICC proved to be a prime example of the impact that can be made upon international politics by "civil society" (defined in contemporary scholarship as globally-organized citizen groups actively supporting United Nations' goals). The "Like-Minded Group" envisioned an independent court with an independent prosecutor and an ICC with universal jurisdiction over the four most serious international crimes.

Four "Core" Crimes

The first of these international crimes was readily agreed upon. The crime of genocide is defined in its treaty as the deliberate attempt to destroy "in whole or in part" members of a religious, ethnic or racial group. Neither "reasons of state" nor the orders of superiors provide a defense. The ICC's automatic and universal jurisdiction over genocide gained swift approval without significant dissent.

At Nuremberg, "crimes against humanity" were prosecuted only in connection with other crimes. The International Tribunal for Former Yugoslavia broke new ground in advancing its legal status. Under the ICC's mandate, "widespread or systematic" attacks against civilians, including murder, torture, "disappearances," rape, and forcible transfers were denoted as "crimes against humanity." Careful attention was given at the Rome Conference to establish that deliberate policies of rape and sexual slavery were included in its definition. Moreover, this crime was not confined (as it had been at Nuremberg) to the context of international war, but also covered such acts when committed within a civil conflict or even during peacetime. This last factor alone signifies a significant inroad on state sovereignty on behalf of human rights.

Undoubtedly the oddest outcome of the Rome Conference lies in the status of the crime of aggression (also identified and punished at Nuremberg). The United Nations had repeatedly failed in its historical quest to find a consensus definition for aggression. The "Like-Minded Group" strongly advocated for its inclusion in the ICC's mandate. The permanent members of the Security Council, however, fought vigorously for the preeminence of Article 39 of the UN Charter which clarifies that the Security Council has sole authority to identify aggression and authorize a response on behalf of the international community. (Hence, aggression is whatever the Security Council says it is under the UN Charter.) The Rome Conference crafted a curious compromise-aggression became one of the four "core" crimes under the ICC's authority-although the ICC could never exercise this authority until 7/8th of its adherents approved of a working definition.

War crimes remains virtually the oldest area of customary international law, protecting the treatment of prisoners-of-war and civilians, and prohibiting certain weapons, among other features. (The proposal from several Non-Aligned states to add nuclear weapons to the list of illegal weapons alarmed the United States, which successfully defeated the effort.) The Clinton Administration, which had signaled its support for the ICC as recently as four months before the Rome Conference, dug in its heels on war crimes. Could U.S. soldiers be dragged before a politically motivated prosecutor for actions undertaken even in fulfillment of United Nations-sponsored humanitarian efforts? What the Clinton Administration sought but failed to get was essentially an iron-clad guarantee that no U.S. soldier would end up on trial by the ICC for alleged war crimes. Although deliberate intent is required of war crimes acts (so that an accidental bombing of civilians, e.g. as happened in Kosovo, would not create legal vulnerability), this issue sparked such fierce opposition by the Pentagon that it swayed the Clinton Administration into absolute opposition. The United States then floated the idea that it might join the ICC if it could join with an exemption on war crimes. This notion drew vehement denunciation by the "Like-Minded Group" and others. In one of the several attempt to satisfy the United States, a 7 year "opt-out" provision for war crimes was inserted permitting a state to join the ICC while being immune from its war crimes authority for 7 years.

Jurisdiction

The Security Council may request that the ICC prosecutor take up a case, provided that 9 of its 15 members, including all of the permanent members, agree. The United States argued that this should be the only process by which the prosecutor could consider legal action. Of course, this would in effect permit the permanent members of the Security Council to veto any potential actions against themselves and their allies.

The Rome Conference, despite U.S. opposition, added 2 more routes to activate the prosecutor. State members, either the territorial state where the alleged crime was committed, or the nationality state of the accused violator, could request the prosecutor's investigation, but only under restrictive and complicated conditions. At U.S. insistence, territorial or nationality states could invoke the prosecutor attention only following the format of "complementality."

"Complementality" means the prosecutor would request the relevant state to do its own investigation and evaluation of the merits of the charge, and, if appropriate, try the individual in their own domestic court system. The ICC would in fact come into play only by taking up jurisdiction if the state proved either "unable" or "unwilling" to carry out a legitimate investigation and prosecution according to a three-person panel of the ICC (serving as a pre-trial chamber). When and if the ICC takes a case following the "complementality" procedure, the prosecutor is limited to "requesting" (not compelling) witnesses, and "seeking" (not demanding) state cooperation. Moreover, the Security Council may require the ICC to suspend any of the ICC's investigations or trials for 12 months-an option that can be renewed indefinitely.

United States Rejection of ICC

France and the United Kingdom had been noncommittal about the ICC until the series of compromises on "complementality" had been worked out. At that point, they joined virtually the rest of the European Union in aligning to support of the ICC. David Schiffer, the U.S. Ambassador to the Rome Conference, squeezed out "complementality" and other compromises by implying that the United States would join if these points were satisfied. On July 17th, 120 nation-states voted to accept what now became the Rome Treaty creating the ICC, while the United States joined Algeria, Iran, Iraq, Israel, Libya, North Korea, the PRC and Sudan in opposition to the ICC. (There were also 21 abstentions.)

Ambassador Schiffer explained that the Rome Conference had been hectic, pointing out the 1400 unresolved provisions and that the final draft was received at 2 am on July 17th. This foreclosed a careful, line-by-line reading of its provisions and left the United States with an unacceptable take it or leave it proposition. Furthermore, the notion of "complementality" left the possibility that two members of the ICC pre-trial chamber could overrule (by 2-1) the United States judicial system on such a vital matter. Noting that the United States has the largest deployment of military personnel in the history of the world, often to the most troubled parts of the world at the very request of the United Nations, it would be not be in U.S. national interest to endorse the Rome Treaty.

The Preparatory Committee continued to meet in the following months to work out the treaty's details with active U.S. participation. In August of 1999, the United States made it known to the Preparatory Committee that there was still time to reconsider on both sides-would it entertain a provision that would secure U.S. support for the treaty? It would. The United States then proposed an exemption from the war crimes mandate for those military actions committed as "official acts." In other words, military actions undertaken at the express command of the appropriate military hierarchy could not constitute war crimes. Voicing the opinion of virtually all the participants, one disgruntled observer noted that this would have reversed the protection of human rights to its pre-Nuremberg status.

The United States presently has little credibility with the CICC or states supportive of the ICC. Senator Jesse Helms, the powerful chair of the Senate Foreign Relations Committee, has forcefully and repeatedly declared the Rome Treaty "dead in the water." It may be DOA in the United States, but the ICC presently has over 90 signatures, and many anticipate its achievement by December of 2001 of the 60 ratifications necessary to bring it into force.

Ironically, many liberal supporters have not only lost their enthusiasm for the ICC, but have moved, in some cases, to actively oppose the Rome Treaty based on two arguments. First, they allege that the ICC was unconscionably weakened to entice the United States to join. Not only did the United States spurn the ICC, but it managed to mangle the intended judicial capacity of the ICC through "complementality" and other compromises that in effect crippled it. Secondly, many leftist critics fear that the ICC may be seen as a visible and viable punishment for the worst international criminals, and thus provide a convenient excuse for the international community to avoid humanitarian intervention during a crisis. In other words, the ICC may end up functioning as an excuse or substitute for actually taking action to stop horrific bloodshed in difficult cases like those in Former Yugoslavia and Rwanda.

The United States' Failed Leadership on Human Rights

To many of its critics, the United States' posture opposing the ICC signifies that the "emperor has no clothes" (Amnesty International, Annual Report; Human Rights Watch, World Report). Once the unquestioned international champion of human rights, the United States regressed into the most prominent Western recalcitrant on human rights by its refusal to join human rights treaties, and then further retreated from its original role to become the chief obstacle to the supreme achievement of human rights-an International Criminal Court signifying the genuine "protection" of human rights.

--Nancy Haanstad, PhD
Weber State University