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| **David Scheffer, Ambassador at Large for War Crimes Issues**         |
|                                                                       |
| Address at American University,\                                      |
| Washington, DC, September 14, 2000                                    |
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**Evolution of U.S. Policy Toward the International Criminal Court**

I am very honored to have this opportunity to address such a
distinguished audience, and I want to thank American University for its
foresight in hosting this event. I attended the first and one subsequent
meeting of the august group that convened under the auspices of the
American Academy of Arts and Sciences to examine the Rome Treaty of 1998
for the International Criminal Court. Under the leadership of Sarah
Sewall and Carl Kaysen, the Academy has held some of the most productive
meetings I have ever attended on this subject. I remember particularly
the Chicago meeting which was an exceptionally stimulating and
intellectually challenging discussion about some very complex issues. I
want to congratulate everyone in this room who participated in the
Academy\'s deliberations and helped produce the report, *The United
States and the International Criminal Court: Choices Ahead*, that will
stand for many years as probably the most comprehensive treatment of
this subject at this time from the American perspective. I will read it
forthwith.

I do want to apologize publicly to Carl and Sarah for never having
produced my own chapter for their report, as they so graciously and
persistently sought from me. My contribution to the report is a
re-publication of my remarks before the UN General Assembly and Sixth
Committee on October 4, 1998. I think they understand that the demands
of my job are frankly so overwhelming that there are times when
producing a scholarly document on deadline, even a delayed deadline, is
impossible. I will have to save all of that for another day. But Sarah
is someone with whom I spent several years, during the first term of the
Administration, laboring over U.S. peacekeeping policy. And Carl\'s
academic prowess is formidable. I know the kind of discipline and
inquisitiveness she and Carl must have brought to every stage of their
work on this project.

I have been asked to cover a large subject today, namely the evolution
of U.S. policy toward the ICC. I do not want to reiterate so much of
what I have already written and spoken about elsewhere, particularly in
the January 1999 issue of the *American Journal of International Law*
and the ASIL Proceedings of 1999. I will look back, however, and
emphasize a few points I have written about before, as well as focus on
the national security aspects of the U.S. approach to the Rome Treaty,
with some final comments about the proposed American Servicemembers\'
Protection Act of 2000.

There remains a lot of confusion and, frankly, misrepresentations about
U.S. policy toward the ICC in the popular media as well as in some of
the scholarly works I have read. Overall, there appears to be a common
perception that the United States has always stood and continues to
stand in opposition to the creation of a permanent International
Criminal Court. This perception, of course, is false. The Clinton
Administration engaged in the negotiations for an ICC, which formally
began in 1995, strongly supporting the establishment of an ICC. We
demonstrated that support by being intensively engaged in the
negotiations and producing a large number of papers commenting on and
proposing text for the emerging draft treaty. President Clinton on six
occasions publicly expressed his support for the establishment of a
permanent International Criminal Court. From the very beginning,
however, we never intended that the treaty\'s personal jurisdiction
would extend as far as the Rome Treaty finally established under Article
12. To argue that our position on personal jurisdiction reflected an
underlying opposition to the whole concept of a permanent International
Criminal Court or to the Rome Treaty itself is a deeply flawed argument.
We have remained on the front line every day since the first UN session
in early 1995 negotiating to support the establishment of a permanent
court that the United States can participate in with confidence and in a
manner that is compatible with our national and international security
responsibilities. The American people expect that of us and we have
remained faithful to their interests.

For years, and until the 3rd week of the Rome Conference in July 1998,
the U.S. position on how the ICC\'s jurisdiction would be triggered
remained consistent. We accepted very early in the UN talks the
proposition that a State Party could initiate an ICC investigation of a
situation falling within the subject matter jurisdiction of the statute
of the Court. We also agreed with others that the Security Council could
initiate ICC investigations by referring a situation pursuant to a
resolution. We argued for a long time that such a Security Council
referral did not have to be authorized under Chapter VII of the United
Nations Charter. We argued strongly, however, that if Chapter VII
authority were invoked by the Security Council, then the ICC\'s powers
could be greatly strengthened by that Chapter VII mandate. It became
clear prior to Rome that governments were determined to require a
Chapter VII basis for Security Council referrals, and we ultimately
conceded that point. However, it should be noted that our original
position would have made it much easier for the Security Council to use
the ICC for investigations because the Council would not have
necessarily had to engage in the very difficult negotiations that are
always required for Chapter VII actions and which sometimes result in
the veto power blocking effective action by the Council. If, in future
years, the Council does not refer a particular case to the ICC, this may
well be the reason.

The third component of our position on initiating ICC investigations was
to require that if a State Party referred a situation to the Court and
that situation already was the object of Security Council deliberations,
then the Security Council\'s approval would be required before the
matter could be taken up by the ICC. This was an important and entirely
logical position to take in light of the Security Council\'s
responsibilities for international peace and security and America\'s own
extensive commitments globally to international peace and security. As
you all know, that position proved unsustainable as the Rome Conference
progressed in the summer of 1998. The outcome was the Singapore
compromise, now reflected in Article 16 of the Rome Treaty, and we of
course supported that compromise as the best we could obtain under the
circumstances.

During the final 2 weeks of the Rome Conference, we sought three
different paths in order to achieve U.S. support for the text of the
Rome Treaty and thus join consensus on July 17. Though some may fault us
for not having initiated these efforts earlier in the negotiations, they
fail to appreciate the complex and multifaceted national security
interests that needed to be balanced as we confronted these issues. We
shoulder responsibilities worldwide that no other nation comes even
close to undertaking. Even those close allies of ours that are deeply
engaged in support of UN peacekeeping operations are not assuming the
vast international security responsibilities that our military has
worldwide.

Our first effort mid-way through the Rome Conference was to introduce a
proposal that would permit a State Party to \"opt out\" of crimes
against humanity and/or war crimes, but not genocide. This had
originally been proposed by the International Law Commission in 1994. We
proposed that any such State Party would forfeit its right to refer
matters to the Court, however, if it chose to opt out of either of these
categories of subject matter jurisdiction. And the Security Council
could override the \"opt out\" with a Chapter VII referral. Although 22
governments openly supported that proposal, it failed to attract enough
support to be sustainable.

Our second effort, in the final week of the Rome Conference, was a
package deal developed with the other permanent members of the Security
Council that would permit a 10-year transitional period during which a
State Party could opt out of crimes against humanity and/or war crimes.
That privilege would expire at the end of the 10-year period but could
be extended through certain arrangements if there were general agreement
among the States Parties. If that agreement could not be obtained and
the State Party still required the privilege, then it would have the
option of withdrawing from the Treaty. However, the P-5 proposal failed
to attract sufficient support quickly enough to be sustainable. The
modified version of it which is now reflected in Article 124 of the
Treaty was never presented to us until it appeared on the final day of
the conference (although there was a speculative hint about it someone
made to me on the penultimate day of the conference). The provision did
not meet the hard-fought requirements that the United States needed for
this particular approach to subject matter jurisdiction. Of course, we
will never know what might have transpired if the conference had
afforded us more time, as we requested, to consider the provision and
discuss it both within the U.S. Government and with other governments.

Our third effort was to propose that Article 12 be drafted either 1) to
require the express approval of both the territorial state of the
alleged crime and the state of nationality of the alleged perpetrator in
the event either was not a party to the treaty, or 2) to exempt from the
court\'s jurisdiction conduct that arises from the official actions of a
non-party state acknowledged as such by the non-party. The former
proposal recognized the large degree of support at the conference for
the consent of the territorial state, but also remedied the dangerous
drift of Article 12 toward universal jurisdiction over non-party states.
The latter proposal required a non-party state to acknowledge
responsibility for its actions in order to be exempted, an unlikely
occurrence for those who have committed genocide or other heinous
crimes. In contrast, the United States as a likely non-party state for
at least some period of time would never hesitate to acknowledge that
humanitarian interventions, peacekeeping actions, or defensive actions
to eliminate weapons of mass destruction are \"official state actions.\"
But the U.S. proposals failed to attract sufficient support.

As I have often said, we had hoped that the Rome Conference could be
extended to iron out these fundamental problems and arrive at a formula
that the United States and, frankly, some other major States could
support. I worked very hard in the final days to achieve an extension,
including a direct appeal to Secretary-General Kofi Annan through his
representative at the conference. I still believe a fatal flaw in the
process was the decision not to extend the conference, as is so often
done with other treaty negotiations in order to achieve broader
consensus. So while I know there are critics who argue the United States
did not seize opportunities early enough to push alternative strategies,
it must also be recognized that the Rome Conference did not seize the
opportunity to allow more time to address a fundamental problem with the
treaty. It could have made an enormous difference in support for the
treaty if we could have labored over it for an additional but brief
period of time.

That is the past. Since Rome, the United States has remained deeply
engaged in the Preparatory Commission (PrepCom) sessions. We led the
negotiations on the Elements of Crimes and provided the working draft
for those negotiations. We also remained deeply engaged with the
negotiations on the Rules of Evidence and Procedure, and were satisfied
with the leadership of Australia, Canada, and France in those talks. On
June 30th of this year, we joined consensus in support of both of those
work-engine documents of the Court. Those are not the actions of a
government retreating from the treaty or waging an opposition campaign
against it. We are determined to remain engaged every step of the way to
represent important U.S. interests in the process and to advance the
cause of international justice. But that cause will fall far short of
its potential unless the United States can be, at a minimum, a good
neighbor to the Court when it is established. The ICC will need the
United States if it hopes to be a truly effective institution.

Some of our post-Rome concerns about the ICC statute have been addressed
in the Elements of Crimes and the Rules of Procedure and Evidence. A
couple of other issues are slated for consideration at later stages in
the PrepCom process. Those are encouraging developments for the United
States and for the ICC. But we have a remaining fundamental difficulty
with the Rome Treaty that we sincerely wish to resolve so that, at a
minimum, the United States can be a good neighbor to the ICC regardless
of whether we achieve party status or not in the near future.

That fundamental difficulty is the exposure of our armed forces, which
are deployed by the hundreds of thousands around the world at the
request of governments and to ensure international peace and security,
to prosecution before the Court even before the United States becomes a
party to the Rome Treaty. The possibility that a U.S. soldier fighting
to halt genocide could be accused by the other side of war crimes and
brought before the Court before we have even joined the Court is
untenable to the American people. We are at a vital crossroads in world
history, reflected in the Millennium Summit last week, when the resolve
of the international community to confront evil is being tested every
day. In any military action, we have to accept the possibility that
things will not go as planned \-- missiles or bombs may go off target,
and human error could result in unintended destruction. But fear of
being accused of war crimes for honest mistakes should not prevent us
from acting. We are sometimes criticized for not confronting that evil
immediately, for letting it fester too long until too many innocent
civilians are slaughtered by fearless, thuggish leaders of tyranny. We
should be determined to confront the perpetrators of human misery, but
we must do so recognizing the risks and the necessary balance that must
be struck between our pursuit of international justice and our common
quest to achieve international peace and security and respond to
humanitarian calamities.

The United States is not shirking from prosecuting its own, as some
falsely claim. We fully recognize the significance in the Rome Treaty of
the provisions on complementarity that we inspired and helped draft. We
know how important this logical deferral to national investigation and
prosecution is in the treaty and we are very conscious of the views of
other governments and non-governmental organizations and scholars about
the sufficiency of complementarity in the Treaty framework. We are
currently negotiating a proposal that would not amend the Rome Treaty,
but would permit a procedure that still requires a nation that is not
yet a party to the treaty to act responsibly and bring its own to
justice. If a nation, whether a party or not to the Rome Treaty, acts
irresponsibly and wages massive crimes against its own people or those
of another nation, then we have no interest in permitting such a nation
to enjoy any special privilege; let that nation\'s war criminals stand
trial before the ICC. We want to achieve the objectives that inspired
the Rome Treaty, and indeed to do so as a non-party until such time as
we can join the treaty.

The proposal that the U.S. floated last March has benefited from
critical comment by other governments and non-governmental
organizations, and we are prepared to adjust that proposal to 1)
eliminate its reference to the Security Council, and 2) revise its
wording so that only non-party states acting responsibly in the
international community and honoring the principle of complementarity
can invoke a privilege of non-surrender of its nationals to the Court.
Many have asked me how this can possibly be done. If you will allow me
one moment of personal reflection, I have faced that kind of question
innumerable times in war crimes work for 8 years, in negotiating rooms
and at atrocity sites across the globe. If there is one approach to war
crimes work that I have employed consistently, it is that imagination
and pragmatic innovation ultimately can achieve common objectives in
international justice. There is always a way to find a workable answer
to a difficult problem if we collectively labor over it long enough and
do so recognizing that international politics, just like domestic
politics, is the art of compromise. The spirit of this process needs to
be recognized and practiced, not only by governments, but also by
non-governmental organizations and even a few scholars.

Reason and common sense must prevail if we are to strike a proper
balance for U.S. participation in the work of the International Criminal
Court. Those who still argue that the Clinton Administration is seeking
to oppose the Rome Treaty and destroy its objectives are deeply
mistaken. As I said to the *New York Times* in June:

The world needs a permanent international criminal court. We need it
because the perpetrators of these heinous crimes must be brought to
justice, and we need it as a deterrent over the generations that follow.
The international system simply cannot continue to deal with these
problems in an ad hoc manner indefinitely.

There is much to gain by having the United States on board as a partner
to the ICC. We are so close, it would be a colossal mistake for purist
notions about the Rome Treaty to kill off the opportunity for the United
States to become a true champion of the Court and to provide it with the
kind of assistance and cooperation that it so clearly will need to be an
effective engine for international justice.

Let me close with a few remarks about the proposed American
Servicemembers\' Protection Act, currently before Congress. The Clinton
Administration opposes this piece of legislation, and in July, I
testified along with Defense Department Undersecretary Walt Slocombe to
emphasize our opposition to it before the House International Relations
Committee. I have brought photocopies of my statement for your
convenience, as well as my University of Pretoria speech of last month
that addresses more generally the international accountability agenda.
Both are available on the State Department Web site (www.state.gov). I
will be speaking tomorrow before the Human Rights Caucus of the U.S.
House of Representatives about our opposition to this bill.

The American Servicemembers\' Protection Act is severely misguided and
above all else undermines fundamental U.S. national security interests.
The bill, if enacted, would prohibit U.S. cooperation with the
International Criminal Court, even if that cooperation would help: a)
convict a war criminal such as a Milosevic or a Saddam Hussein, or b)
clear a U.S. citizen of alleged wrongdoing. The bill also would make the
United States a safe haven for war criminals attempting to escape ICC
jurisdiction, by precluding extradition.

Even if we were able to negotiate in connection with the treaty\'s
supplemental documents the kind of protection we believe we need as a
non-party and which Members of Congress have told us they support, the
bill \-- which undermines our negotiating leverage \-- would prevent the
United States from being a good neighbor to the ICC, which is a vital
prerequisite to achieving our common objective. The bill would prevent
the United States as a non-party from being able to provide such support
as enforcement (including apprehension of suspects and extradition of
war criminals), information-sharing, witness relocation, expert
personnel, technical assistance, voluntary financial contributions
(provided existing federal law restrictions are lifted), and diplomatic
support. The bill would prohibit military aid to any country that has
ratified the treaty, with exceptions only for NATO and a few key U.S.
allies, ironically most of whom are the Court\'s strongest backers and
have already ratified or are moving toward ratification of the Rome
Treaty. Section 5, for example, could make UN operations exceptionally
difficult to undertake. Section 7 could weaken critical military
alliances of the United States. The bill also would require the UN
Security Council to grant immunity to U.S. personnel in order for them
to participate in any assessed UN peacekeeping mission, an objective
that we do not believe would be achieved with this kind of
confrontational legislation.

Again, I want to thank American University for hosting this conference
and lunch, and I applaud the American Academy of Arts and Sciences for
its dedicated work on the International Criminal Court and the U.S.
stake in it.