Courting Disaster: The U.S. Takes a Stand

The United States may be the "indispensable nation" -- in Madeleine Albright's famous phrase -- the balance wheel in Asia and Europe, and strategic guarantor of global security. Still it's hard for most other countries to admit that their decorated armies aren't world-class contenders, or that regional neighbors might be wary of their plans. They grumble about America's extraordinary position and power, and chafe at our claim to an exceptional role. Too often, Washington's failure to explain what it needs to serve the security community leads to a dismissal of American leadership as the whim of a superpower.

A recent example of our embarrassed diplomacy is the snarled attempt to create an international criminal court. The idea of a standing tribunal to try crimes of ethnic hatred -- genocide, war crimes, and crimes against humanity -- was touted by the White House from 1994 onward as the centerpiece to a foreign policy seeking to stem bloody ethnic wars.

In June 1998, after four years of discussions on a draft treaty, the United States went to Rome for a final conference, and left five weeks later in stumbling disarray. The mood and temper of the final days of Rome recalled the mid-1970s, when the U.N. General Assembly proposed a "new world order" limiting free trade and press freedom, and the G-7 were forced to hold their ground. Only this time, Europe joined the fray against the United States. Ironically, the United States could support much in the Rome treaty that achieved the creation of a permanent criminal court ready for work in The Hague, with 18 independent judges and a professional prosecutor elected by the treaty parties. The U.S. took pride in assuring that the court could address civil and ethnic conflicts by expanding the reach of traditional humanitarian law and highlighting the responsibility of military commanders and the scourge of sexual crimes in those conflicts.

Yet in the final vote at Rome, on July 17, 1998, the United States found itself isolated and in troublesome company. One hundred twenty countries, and all other members of NATO, supported the Rome treaty. The United States, Israel, and China voted against the court, together with four other countries variously identified by observers of the unrecorded electronic vote as Algeria, Iraq, Libya, Qatar, Sri Lanka, Sudan, or Yemen. Twenty-one countries abstained.

How this happened may tell us some disturbing things about America's current position in the world, and the state of our multilateral diplomacy. The fracture between the United States and its NATO allies over the criminal court could be chalked up to misunderstanding. But at times it ran closer to disdain for America's role in international security and its attendant burdens.

The work at Rome sought a permanent architecture for the trial of serious war crimes. The project of creating an international court began in the 1950s. It marked time for three decades while international lawyers debated a "Code on Crimes Against the Peace and Security of Mankind" -- an attempt to define aggression that was bound to fail in the hot days of the Cold War and decolonization. Serious work on the court revived in the late 1980s, when Caribbean countries challenged the extension of long-arm extraterritorial jurisdiction in the war on drugs. The Caricom countries questioned the use of a wide-ranging offshore national police power and at the same time doubted their own ability to resist semi-sovereign drug lords. An international court to try large-scale international drug cases was a beguiling alternative.

The project was soon overtaken by more pressing events, with the collapse of Yugoslavia and the violence of ethnic warfare in Bosnia and Croatia. In 1993, with American support, the Security Council resorted to its Chapter VII powers to assemble an ad hoc criminal tribunal in The Hague investigating the outrages of the Balkan conflict. Chapter VII of the U.N. Charter allows the council to take measures against threats to international peace and security, and creation of a court was rationalized as necessary to deter further violations of humanitarian law in the fighting, and to restore post-war stability. Negotiation of a treaty-based war crimes court for the Balkans seemed too slow in the emergency, and the region's heedless belligerents were unlikely to sign up voluntarily.

In 1994, in the face of the Rwandan genocide, the council authorized another ad hoc tribunal -- placing the Hutu massacres in the portfolio of the same United Nations prosecutor, a doubling-up which has led to the relative neglect of Rwandan affairs. These ad hoc creations were seen by some as testing the limits of Security Council power, and it was doubted that such improvisation could continue forever. In 1994, the International Law Commission of the General Assembly -- a respected group of 34 international law experts -- completed its long-standing study of a permanent criminal court and, with the concurrence of the American member, proposed a wide jurisdiction over narcotics, terrorism, and the crimes of war. The genocide in Rwanda and the massacre at Srebrenica made clear that international justice had real problems to address.

The United States took part in indecisive preparatory work over the next four years, and agreed to convene in Rome in June 1998 to attempt to finish the treaty text. But core issues were still undecided, and the timing was problematic. It could be called a Y2K problem -- for the Rome conference began in a millenarian mood. An unfettered court with the broadest possible powers was the only acceptable alternative to many states and non-governmental organizations, and these supporters insisted that the treaty had to be finished, ready or not, before the millennium closed. It was, at best, to be a breathless run through 1700 bracketed items bordering politically delicate fields.

The precedent of the Ottawa negotiations on a landmines ban was also on negotiators' minds -- scattering pixy dust in the political air. In 1997, Canada invited states who were deemed "like-minded" to sidestep the complicated talks of the Geneva committee on disarmament, in favor of a come-as-you-are meeting in Ottawa to ratify a flat ban on anti-personnel land mines. The absence at Ottawa of many of the world's major military actors was not seen as disabling. The Ottawa process was hailed as a new method of lawmaking -- agreement by the enlightened, leaving the laggards behind. The necessary balance between aspiration and state practice -- and the place of consensus in seeking a workable norm -- were obscured for the moment by the belief that civil society could create irresistible pressure to join.

At Ottawa and after, many NGOs believed their own press, spinning for reporters, able to advise country delegations, lending experts to represent smaller countries that could not field their own diplomatic teams. (At Rome, a surprising number of state delegations ended up with funding by western NGOs, including George Soros and the Open Society Institute.) Ottawa also saw a truculent unwillingness to credit U.S. military concerns about the value of landmines in defense of South Korea, despite the Korean peninsula's unsteady posture. Allies committed to the joint defense of Europe did not credit U.S. tactical assessments in other theaters of operation.

So, too, the rhythm of continental politics might have cautioned American diplomats approaching Rome. The "like-minded states" have continued as a rump foreign policy caucus, headed by Canada and Norway, pursuing a "humanitarian" foreign policy. The caucus included 29 states at the time of the Rome conference, including many of our NATO allies, and has "benefited from the coordination of the ... Canadian mission," as one observer put it. Britain was not a member of the like-minded, but Prime Minister Tony Blair's Wilsonian embrace of an "ethical" foreign policy made it difficult for Britain to oppose like-minded positions.

Chunneled Britain, ambitious France, and a self-conscious Germany were eager for European leadership, with NATO loyalties likely to fray. Europe's long frustration in Bosnia also moved the post-Maastricht community to show it could act without the United States. And like-minded governments were still beguiled by the notion that law alone, without supporting force, might stop adversaries. (Europe's famous blunder of December 16, 1991 -- prematurely recognizing the breakaway Yugoslav republics -- evidenced the same wistful belief in law's self-executing force.)

A third storm warning escaped notice in Washington -- the stalled debate on Security Council reform. FDR's Four Policemen (together with France) remain as the framemakers of security in the U.N. council, exercising the veto power of permanent membership. The council was enlarged in 1963 from 11 members to 15 members through a charter amendment; but since that time another 77 countries have joined the United Nations. Proposals to expand the council and render it more "democratic" were mooted throughout the 1990s in slow-drifting working group debates, with some countries opposed even to preserving existing permanent seats and veto power. The talkfest got nowhere because regional rivals could not agree on who might fill new permanent seats. (Archaically, in a world of cyberspace and capital flows, the U.N. still lives and breathes by regions.) The rivalries of India, Pakistan, and Indonesia, or the friendly competition of Brazil, Argentina and Mexico, were not easy to resolve.

Council expansion has become a political project of the United States as well, with U.S. support for growth from 15 members to 20 or 21 in order to gain permanent seats for Germany and Japan. America has also supported attempts to open council procedures to wider view -- by briefing regional groups and troop-donating countries, and structuring informal council consultations with NGOs and even opposition groups.

Nonetheless, the stalemate on expansion has left the Security Council with few champions. The Rome conference summarily dismissed any major role for the Security Council in the operations of the permanent criminal court. The council will not have exclusive authority to refer cases. The council lacks any power to defer prosecutions that might interfere with delicate peace negotiations -- except where it can muster the concurring votes of Britain, France, Russia and China, together with the United States. Thus, America lost any veto over the imprudent use of the court's docket. (One can argue that the U.S. really threw in the towel in 1994, when the International Law Commission's consensus draft liberally allowed criminal complaints to be brought by individual state parties, even without Security Council approval.)

Disdain for the Security Council is unrealistic, to be sure. The council is the only organ authorized to enforce the international court's orders against uncooperative states. But many of the like-minded states and NGOs engaged at Rome seemed to prefer a papier-mache court to muscle and moxie.

Military facts of life complete the story of America's isolation in the Rome process. American forward deployment of 230,000 troops in Europe, the Middle East, and Asia means that American forces will be uniquely exposed to the arrest powers of an international tribunal. Negotiated agreements with host countries -- popularly known as Status of Forces Agreements or SOFAs -- currently protect overseas American troops from local arrest for official acts. But the extension of SOFAs to international arrest warrants is uncharted.

The United States must also be realistic about its operational responsibilities and their perils. America has the laboring oar in missions such as counter-terrorism, deterrence against weapons of mass destruction, and peace enforcement, as well as freedom of navigation exercises. In hazardous conditions we use forward-leaning "rules of engagement" to ward off trouble before it happens. The casualties suffered in the Marine barracks in Lebanon and Khobar Towers in Saudi Arabia, and recollections of the USS Stark, damaged by Iraqi missiles in the Persian Gulf, make it hard to quarrel with a vigilant attitude.

Even in peacekeeping, U.S. rules of engagement delegate wide discretion to unit commanders to use force in self-defense and mission accomplishment, sometimes in ways that our allies may not like. In the Somalia peacekeeping operation, for example, we announced that any truck-mounted automatic weapons brandished in downtown Mogadishu would be deemed hostile -- and this published rule helped to deter local toughs from challenging U.S. forces. In the Persian Gulf Tanker War, we escorted Kuwaiti oil tankers through the Straits of Hormuz and enforced a maritime exclusion zone to protect our transiting vessels. Foreign aircraft and vessels were warned to stand off at a certain range, lest their intentions be mistaken. This is not a traditional power of maritime law, but we judged in the circumstances that it was necessary to avoid dangerous confrontations.

These rules of engagement may not gain the agreement of all the world's governments. They can properly be debated in military working groups, political assem- blies, and even church pulpits. But we must face the fact that adversaries will seek to exploit the dramatic setting of a criminal courtroom to oppose military actions that represent good faith applications of humanitarian law and just war principles. Criminal sanctions are designed for deliberate humanitarian violations of the worst kind, not principled interpretations of working doctrines. It is no comfort to an American G.I. to suppose that he can be vindicated after a long and tortuous court proceeding.

Mission-level decisions are the other source of concern. A president sometimes can't wait for the Security Council before embarking on military operations -- Desert Storm notwithstanding. Article 51 of the U.N. Charter protects the right of unilateral and collective military action in self-defense against an armed attack. But there is no consensus among international lawyers on the permissible limits of self-defense -- for example, anticipatory action before an adversary has mobilized, or using force against terrorist groups that operate in the territory of a third party country. And there are cases that don't fit any ordinary model of interstate self-defense -- for example, NATO's humanitarian intervention in Kosovo. Using force to stem ethnic cleansing was not in mind when the U.N. Charter was drafted in 1945.

Belgrade's lawyers trooped across Europe to The Hague to oppose NATO's 1999 air campaign, even while the conflict proceeded, complaining of "aggression" and "war crimes." The International Court of Justice, which hears state-to-state civil complaints, dismissed the actions against Britain and America on jurisdictional grounds. But the matter is still pending on the docket against other NATO members. Judge Weeremantry of Sri Lanka, as acting president of the tribunal, conspicuously noted that the case presents "serious issues of international law." Unlike the proposed criminal court, the ICJ has no public prosecutor and thus cannot summarily reject factually frivolous complaints at the outset -- individual states move forward on their own steam. But the Yugoslav example is a caution nonetheless. If the Rome parties took a strict constructionist view of the U.N. Charter -- and said, hypothetically, that any use of force without Security Council authorization is aggression, except for self-defense -- then NATO would be vulnerable to legal action for its humanitarian mission in Kosovo, good motives notwithstanding. Some countries will not agree with U.S. decisions on the use of force, and will seek to exploit the criminal court to make their point.

The package announced at Rome on the hurried final day met some of these concerns. The crime of "aggression" is placed within the court's jurisdiction only with the proviso that no case can be brought before treaty members agree by majority vote on how to define the crime. Any treaty party that dissents from the definition will be immune from complaints of aggression. But the treaty does not require a Security Council finding before an indictment -- despite the council's traditional Chapter VII role in declaring what is a threat to the peace. The United States will again have lost an effective veto. Other countries also face this problem, but the exceptional nature of U.S. security tasks warrants uneasiness about the court's control and docket.

Military power is a delicate issue in the politics of Europe, with its memory of destructive wars. Japan's constitution still bars any use of force except in territorial homeland defense. A narrow reading of the U.N. Charter -- and the suggestion that the charter exhausts all legal justifications for the strategic use of force -- is comfortable for European and Asian international lawyers and civilian leaders who do not conceive of security in global terms.

The effect of this on international lawmaking is striking and clear. The use of force to deter disruptive states has been an American engagement, stemming from the U.S. role in the regional balance of power over the last 50 years. American investment in military logistics, airlift, and intelligence, as well as a blue water navy and strategic air command, has created an operational capacity sustained by no other state. In U.N. peace enforcement operations in Korea and the Persian Gulf, the United States has been the keystone. Germany's new constitutional capacity to commit its military forces outside the traditional NATO theater of operations, and proposals for a European rapid reaction force, do not change this specialization of function. With the fiscal limits of its new monetary union, Western Europe defense outlays are unlikely to grow any time soon.

The mismatch between economic capacity and historical past prevents any easy substitution for American power. The United States had a 25 percent share of world GDP in 1998; Japan had 17.5 percent, and Germany had 9.4 percent. (Britain, France, and Italy each had under 7 percent. Each of these nations maintains relatively small armed forces.)

For Germany and Japan, the matter of recollected history looms large. The U.N. Charter drafted in 1945 originally labeled Germany, Japan, and Italy as "enemy states" -- archaic language not yet removed despite the admission of these post-war allies to full U.N. membership decades ago. The irksome reference is a reminder, though, that the development of power projection capability by many countries would call up troublesome memories. One European political observer recently noted that his country's admiration for the work of German peacekeepers in Kosovo did not prevent a visible chill when Chancellor Schroeder praised the spirit of "deutschen Soldaten." Indeed, one of the reasons for supporting Security Council membership for both Germany and Japan is to find a way to make their defense identity acceptable to their own publics and their neighbors. Regional identity does not easily substitute -- it is hard for co-equal powers to agree on military action where the United States is not available to push the proposal.

The allied world's peculiar mismatch between economic capacity and defense capability will thus persist for the foreseeable future, and the United States is likely to feel uniquely exposed in peace enforcement measures. This asymmetry has an unhappy consequence in the development of international law, for it means that the United States has few supporters in the full range of its tasks. International law is most easily changed where there is widespread consensus. Where the United States acts alone, it may find itself on a lonely legal ledge.

There is a third feature that makes the United States, as a deployed and operational military power, more self-conscious of the difficulties of a criminal court. This is the question of justiciability -- whether certain questions belong in a court at all. Much of the law of war has been crafted to change how militaries conceive and plan their missions. Training and indoctrination, role-playing and the deployment of lawyers to the field to advise commanders, are methods used by responsible democratic militaries to operationalize the law of war and meet the requirements of proportionality and protection of civilian sites. The criminal framework of the 1949 Geneva Conventions -- permitting universal jurisdiction and trial in any country which gains custody of an offender -- is confined to the crime of deliberate mistreatment of protected persons -- prisoners of war, wounded and shipwrecked personnel, and civilians under occupation.

Other parts of the law of war include the rules on proportionality set out at the Hague Peace Conferences in 1899 and 1907. These involve a sometimes subtle weighing of military advantage against damage to civilians. They have not carried an automatic device for criminal enforcement, either nationally or internationally. The first 1977 Protocol to Geneva proposes to do so, but the United States has not ratified it. The difficulties of air warfare -- shooting at targets from 30,000 or even 5,000 feet -- complicate the operational issues of proportionality. Field personnel may not wish to debate these questions in a criminal courtroom. Many of the choices in dual-use targeting depend on understanding a warfighting plan and frustrating the adversary's strategy. NATO's destruction of Danube river bridges in the Yugoslav campaign forced Milosevic to gamble where to place his armor, though it also inflicted hardship on Serb civilians. (If Milosevic sent tanks south to Kosovo, Belgrade would be exposed to an invasion from Hungary or Croatia, with no easy method of reinforcement.) The experience of civilian judges in reviewing war-fighting plans is limited, and the reluctance of a military to submit to a court's second opinion is fathomable.

A more general future challenge of Rome is addressed to American diplomacy -- learning how to cope with a new style of multilateral negotiations. The Rome treaty was designed to create a working judicial institution. A bottom line assessment could not easily be made when isolated parts of the treaty were mooted in the scattered anterooms of the Rome precincts. Deal-breaking issues going into Rome included the court's scope of jurisdiction, how complaints would be initiated, how the court should draw upon the differing traditions of adversarial and inquisitorial legal systems, and much else. A text with so many degrees of freedom spelled trouble.

Many delegations were unable to follow the proceedings firsthand, as Rome drafting chairman Cherif Bassiouni has noted, because there was no time to translate proposed texts into any other working language besides English, and numerous working groups met simultaneously. Much of the informational work was left to NGOs, which offered their own interpretations along with texts and headcounts. Conference governance is often crucial, and in this case, a skilled and respected Canadian legal adviser, Ambassador Philippe Kirche, was called in at the last moment to substitute for an ailing Dutch conference chairman. In light of this, Canada resigned as co-chair of the like-minded caucus in favor of Australia, at the outset of the conference. But the exertions of Canadian Foreign Minister Lloyd Axworthy in pressing for a treaty by the end of the hurried five-week session could not go unnoticed.

A take-it-or-leave-it chairman's package -- forbidding any treaty reservations -- was announced to the attending states on the last day of the conference. There had been no prior votes on parts of the package. Rather the conference "bureau" saw its role as taking the temperature of the debates, and putting together a portfolio that would attract the necessary countries. For example, France was won over at the last minute by a seven year "transition period" allowing it to accept only part of the court's full jurisdiction. Russia was won over by a provision limiting the ability of the court to investigate internal conflicts in states that have not yet ratified the treaty. The Arab states were won over by a provision varying the language of the Fourth Geneva Convention on the settlement of occupied areas. U.S. concerns about the legal exposure of its soldiers in international operations if we have not joined the treaty were rebuffed by the bureau.

The ability of the United States to talk with friends and amend the package was limited by the frenzied finish. The delegations had a few hours to read over the draft, which was released at 2 a.m. and subjected to a first and final vote on the evening of the same day. The U.S. asked for open debate on the new and surprising provisions concerning the jurisdictional liability of non-party states. (In international military actions, the court can apparently indict even where the defendant's state has stayed outside the treaty.) The U.S. request was blocked by a "no action" resolution sponsored by Norway, though 16 other countries supported the U.S. procedural request and 25 countries abstained. (The popular contention that there was no sympathy for the U.S. position at Rome must be tempered with this more complicated, if distressing procedural history.) An extension of the conference by several days was not possible, the U.S. was informed in a droll humor, because hotel rooms could not be booked.

This is not a favorable setting in which to conduct great power diplomacy, unless the major issues have been anticipated and worked through national capitals well in advance. The White House gave no guidance to the U.S. delegation until the fourth week of the five-week conference, and by then, it was too late to accomplish any real change in view. The style of diplomacy and conference governance seen at Rome is likely to become more rather than less common. There is a strong view in the human rights community that treaty reservations should no longer be allowed, and that countries such as the United States should be put to the all-or-nothing decision of joining a whole regime or languishing outside. The like-minded caucus is a continuing voice that may shape negotiations, pulling away European allies from political coordination through NATO. Hence, it is crucial that the United States learn how to shape multilateral negotiations before the grand (or inglorious) finale is announced.

Where to go from here is the question. The Rome statute has been signed by 93 countries, and ratified by six. Senegal was the first state party, followed by Trinidad and Tobago, San Marino, Italy, Fiji and Ghana. The treaty will come into force only after 60 state parties are on board, and there must be several financially capable countries among them to support an international court's daunting budget. The criminal court will have jurisdiction over future crimes only, including war crimes, genocide, and crimes against humanity -- waiting in a gloomy posture for the next bloody civil war. But even preparatory work will be expensive. The ad hoc tribunal for the former Yugoslavia spent $71 million in its first few years of work, and now costs over $90 million per year.

Joining the court will require constitutional changes in a number of countries. France has altered its immunity for heads of state, and Germany is amending the rule that forbids the transfer of German citizens to other jurisdictions. The court's strongest backers do not expect the court to become operational before 2002 or 2003.

Even as a non-signatory, the United States has taken part in post-Rome work sessions to pin down rules of procedure and evidence (due to be finished by June 2000) and to specify the "elements" of chargeable crimes. Our rationale for doing so is that even if we remain outside the treaty, it pays to have a well-functioning court that will not be tempted to make rash judgments about legitimate military operations. A calmer mood and better understanding of U.S. security concerns may even persuade our friends to clarify the treaty in ways that could permit signature. (There are other equities at stake as well. The U.S. can be helpful to the court by sending cases from the Security Council, contributing financially or in kind, or lending diplomatic assistance.)

Altering the treaty text to "fix" U.S. concerns is not considered realistic in the aftermath of Rome. But binding "interpretive statements" to pin down treaty provisions could be adopted -- recommended by the preparatory commission to the assembly of states parties -- or could be enshrined as conditions in any cooperation agreement with the court. (A state can pledge to cooperate with the court even without joining.)

An acceptable package would require a standard of judicial deference to good faith military judgments without any disclosure of classified information. It would respect bilateral Status of Forces Agreements -- which currently bar local arrest of U.S. troops abroad for official duties -- and recognize that SOFAs also bar arrest on international warrants as well. (Any question concerning U.S. military policy should be addressed to Washington.) In addition, we need the assurance that complaints of "aggression" cannot be brought against dissenting states, including non-parties to the treaty, unless there is Security Council agreement. And there must be assurance that while the U.S. remains outside the treaty, no third-party jurisdiction will be sought or claimed over American soldiers for acts committed in the course of their duties.

It is anyone's guess if such a fix is possible. Many countries still demand a court with unfettered powers, despite the delicate politics of cases such as Chile's General Pinochet and Kurdish rebel leader Abdullah Ocalan. Many countries are skeptical that the United States will support or sign the Rome treaty no matter what concessions are made. The early enthusiasm of the White House for the criminal court has faded, and there is little inclination to push the Pentagon on the issue. But at heart, the anxiety is broader than the court -- it concerns support for America's role in international security. Politically skillful governments may keep silent when the United States takes unilateral enforcement action or hammers together a multilateral coalition of the willing. But acquiescence is different from embrace. The impasse on the court may reflect a deeper unwillingness to accept the legitimacy of American military power and its necessary tasks in the post-war world.

Ruth Wedgwood is a professor of law at Yale University and senior fellow for International Organizations and Law at the Council on Foreign Relations. In 1998-1999, she served as the Stockton professor of International Law at the U.S. Naval War College She is a member of the National Security Study Group of the Hart-Rudman Commission on Security in the 21st Century.