U.S. GOVERNMENT PRINTING OFFICE

68–483 CC WASHINGTON : 2000

THE INTERNATIONAL CRIMINAL COURT

HEARINGS

BEFORE THE

COMMITTEE ON

INTERNATIONAL RELATIONS

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

JULY 25 AND 26, 2000

Serial No. 106–176

Printed for the use of the Committee on International Relations

(

Available via the World Wide Web: http://www.house.gov/international—relations

(II)

COMMITTEE ON INTERNATIONAL RELATIONS

BENJAMIN A. GILMAN, New York, Chairman

WILLIAM F. GOODLING, Pennsylvania

JAMES A. LEACH, Iowa

HENRY J. HYDE, Illinois

DOUG BEREUTER, Nebraska

CHRISTOPHER H. SMITH, New Jersey

DAN BURTON, Indiana

ELTON GALLEGLY, California

ILEANA ROS-LEHTINEN, Florida

CASS BALLENGER, North Carolina

DANA ROHRABACHER, California

DONALD A. MANZULLO, Illinois

EDWARD R. ROYCE, California

PETER T. KING, New York

STEVE CHABOT, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

MATT SALMON, Arizona

AMO HOUGHTON, New York

TOM CAMPBELL, California

JOHN M. MCHUGH, New York

KEVIN BRADY, Texas

RICHARD BURR, North Carolina

PAUL E. GILLMOR, Ohio

GEORGE RADANOVICH, California

JOHN COOKSEY, Louisiana

THOMAS G. TANCREDO, Colorado

SAM GEJDENSON, Connecticut

TOM LANTOS, California

HOWARD L. BERMAN, California

GARY L. ACKERMAN, New York

ENI F.H. FALEOMAVAEGA, American

Samoa

MATTHEW G. MARTINEZ, California

DONALD M. PAYNE, New Jersey

ROBERT MENENDEZ, New Jersey

SHERROD BROWN, Ohio

CYNTHIA A. MCKINNEY, Georgia

ALCEE L. HASTINGS, Florida

PAT DANNER, Missouri

EARL F. HILLIARD, Alabama

BRAD SHERMAN, California

ROBERT WEXLER, Florida

STEVEN R. ROTHMAN, New Jersey

JIM DAVIS, Florida

EARL POMEROY, North Dakota

WILLIAM D. DELAHUNT, Massachusetts

GREGORY W. MEEKS, New York

BARBARA LEE, California

JOSEPH CROWLEY, New York

JOSEPH M. HOEFFEL, Pennsylvania

RICHARD J. GARON, Chief of Staff

KATHLEEN BERTELSEN MOAZED, Democratic Chief of Staff

STEPHEN G. RADEMAKER, Chief Counsel

MARILYN C. OWEN, Staff Associate

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C O N T E N T S

WITNESSES

Page

TUESDAY, JULY 25, 2000

Part 1: A Threat to American Military Personnel?

The Honorable John R. Bolton, Esquire, Senior Vice President, American

Enterprise Institute ............................................................................................. 3

The Honorable Lawrence S. Eagleburger, Senior Foreign Policy Advisor,

Baker, Donelson, Bearman, and Caldwell ......................................................... 7

WEDNESDAY, JULY 26, 2000

Part 2: Recent Developments

The Honorable David J. Scheffer, Ambassador-at-Large for War Crimes

Issues, U.S. Department of State ....................................................................... 39

The Honorable Walter Slocombe, Under Secretary of Defense for Policy, U.S.

Department of Defense ........................................................................................ 43

APPENDIX

TUESDAY, JULY 25, 2000

Prepared statements:

The Honorable Benjamin A. Gilman, a Representative in Congress from New

York and Chairman, Committee on International Relations ........................... 62

John R. Bolton ......................................................................................................... 64

WEDNESDAY, JULY 26, 2000

Prepared statements:

The Honorable Benjamin A. Gilman, a Representative in Congress from New

York and Chairman, Committee on International Relations ........................... 77

The Honorable Christopher H. Smith, a Representative in Congress from

New Jersey ........................................................................................................... 81

The Honorable David J. Scheffer, Ambassador-at-Large for War Crimes, U.S.

Department of State ............................................................................................ 87

Material submitted for the record:

Prepared statement of Monroe Leigh on behalf of the American Bar Association ........................................................................................................................ 92

Prepared statement of Lawyers Committee for Human Rights .......................... 102

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THE INTERNATIONAL CRIMINAL COURT:

PART 1—A THREAT TO AMERICAN MILITARY PERSONNEL?

TUESDAY, JULY 25, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON INTERNATIONAL RELATIONS,

Washington, DC.

The Committee met, pursuant to notice, at 10:16 a.m., in room

2172, Rayburn House Office Building, Hon. Doug Bereuter presiding.

Mr. BEREUTER. The Committee will be in order. We will reconvene and proceed with the hearing scheduled for today. Today we

hold the first of two hearings on the International Criminal Court.

Tomorrow we will hear from two witnesses from the Clinton Administration, but today we are privileged to have before us two

very distinguished former Executive Branch officials.

Former Secretary of State Lawrence Eagleburger and former Assistant Secretary of State for International Organization Affairs

John Bolton bring with them a wealth of experience relevant to the

International Criminal Court. They are well-known to all Members

of the Committee and require no substantial introduction.

The subject of the International Criminal Court probably is new

to many Members, however, so I will exercise the prerogative of the

Chair to offer a few opening comments, primarily prepared by Mr.

Gilman, who unexpectedly could not be here this morning.

There are many strongly held opinions about the International

Criminal Court, and many passionate disagreements. The one

thing that virtually everyone agrees on, however, is that the way

this issue has evolved over the last few years has been nothing

short of disastrous from the point of view of the national interest

of the United States. This is a very important issue that we have

before us today. Today we are well on the way to establishment of

an U.N.-led criminal court which will claim the jurisdiction to prosecute and imprison many people, including, most important to us,

of course, American servicemembers and other officials of our government in certain instances, irrespective of whether the United

States ever becomes a party to the Court.

No one likes what has happened in this country with regard to

this issue, least of all the Clinton Administration itself. Tomorrow

the Administration’s representative will tell us how they are trying

to undo the damage that seems to be underway. They will tell us,

I am sure, that they are working hard not to bring the United

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States into the Court, which is not their view, but rather to make

it safe for the United States to remain outside the Court.

Supporters of the International Criminal Court claim that the

Administration should have overlooked the flaws in the Rome Statute creating the Court. The Administration’s mistake, in their

view, was its decision in 1998 to walk away from the Court at the

last minute after having done so much to help launch the project.

I am not associating myself with those particular criticisms.

Today they urge us to disregard the Court’s shortcomings and

formally submit our nation and its officials to the court’s jurisdiction by becoming party to the Rome Statute. Another group of critics, including the sponsors of the American Servicemembers’ Protection Act of 2000, believe that the Clinton Administration’s mistake was in launching this project in the first place, given the likelihood that it might spin out of control, as indeed it seems to have

done.

They doubt that the Clinton Administration will ever be able to

reverse the diplomatic defeats it sustained in the Rome negotiations, and they view the Court as a long-term threat to our sovereignty and the legal supremacy of the United States Constitution. We hope that our witnesses will be able to help us sort

through these issues today as we proceed toward the hearing tomorrow, and clarify for us what can be done at this date to protect

our national interests.

Before introducing the panel very briefly, I would next turn to

recognize our distinguished Ranking Democratic Member, Mr.

Gejdenson, for any opening comments that he might wish to offer

at this point. Mr. Gejdenson.

[The prepared statement of Mr. Gilman appears in the appendix.]

Mr. GEJDENSON. Thank you, Mr. Chairman. Let me say that I

am very happy to have both gentlemen before us but particularly

Mr. Eagleburger, who has served this country so well and had such

a distinguished career through the years. Even though on rare occasions we had some differences with him on policy, he is someone

who does bring before the Committee and before the Congress a

wealth of knowledge and has really served this country in an outstanding way, and I really appreciate both these gentlemen but

note in particular a long association with Mr. Eagleburger.

Really I think every Member on this Committee who has dealt

with him through the years has the greatest respect for him even

where again there may be some disagreements. Thank you, Mr.

Chairman.

Mr. BEREUTER. Thank you, Mr. Gejdenson. Mr. Secretary, I have

already said that you require no introduction so now I hesitate to

introduce you but I will simply say that since leaving your very distinguished career with the Department of State, which culminated

in your appointment as Secretary of State in 1992, you have

worked, as the audience should know, as senior foreign policy advisor to the law firm of Baker, Donelson, Bearman and Caldwell,

where you work with among others our former colleague from the

Senate, the Majority leader, Howard Baker.

I understand that you would like your colleague at the table,

John Bolton, to testify first. I am sure this comes as no surprise

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to John because you worked together for 4 years during the Bush

Administration, and he worked, of course, as the Assistant Secretary of State for International Operation Organization Affairs

where among other things he was responsible for our relations with

the United Nations.

Mr. Bolton previously had a very distinguished career as a lawyer in Washington and is now the Senior Vice President of the

American Enterprise Institute. Among other things he has written

extensively about the International Criminal Court. I think Members have some of his articles in the packets before them. Mr.

Bolton, Members have your prepared remarks as well. They will

without objection be made a part of the record, and therefore I invite you to summarize them for us and emphasize the key points.

Mr. Bolton, you are recognized.

STATEMENT OF HON. JOHN R. BOLTON, ESQUIRE, SENIOR

VICE PRESIDENT, AMERICAN ENTERPRISE INSTITUTE

Mr. BOLTON. Thank you, Mr. Chairman. It is a pleasure to be

here again to testify on the American Servicemembers’ Protection

Act of 2000. I appreciate the opportunity to be here today and to

voice my support for that legislation, and I will, as you request,

summarize the statement. I have written on this subject extensively. What I would like to do today that I think might be helpful

to the Committee is touch on a few of the important reasons why

the International Criminal Court itself is objectionable, and some

things that have happened in the past few years that I think help

demonstrate that and demonstrate why the proposed legislation

will be helpful.

Support for the International Criminal Court concept is based

largely on emotional appeals to an abstract ideal of an international judicial system, unsupported by any meaningful evidence,

and running contrary to sound principles of international crisis resolution. Moreover, for some, faith in the ICC rests largely on an

unstated agenda of creating ever-more comprehensive international

structures to bind nation states in general, and one nation state in

particular.

Regrettably, the Clinton Administration’s naive support for the

concept of an ICC has left the United States in a worse position

internationally than if we had simply declared our principled opposition in the first place. I think there are three broad reasons why

the ICC is objectionable. First, is that all the available empirical

evidence we have demonstrates that the Court and its prosecutor—

and I want to come to this important role of the prosecutor in more

detail later in the testimony. I think we all gloss over talking about

‘‘the Court’’ this and ‘‘the Court’’ that when the real element of concern here is as much the prosecutor as the Court—will not achieve

the stated purpose of these institutions, deterrence of war crimes

and crimes against humanity. This is not likely to happen for the

simple reason that the Court will not and should not have the authority it needs to be an effective deterrent.

Indeed, there is not a shred of evidence that advocates of the ICC

have presented to support their deterrence theories. One advocate

said at the drafting of the Rome Statute that ‘‘the certainty of punishment can be a powerful deterrent.’’ I think that statement is corVerDate 11-MAY-2000 17:09 Jan 16, 2001 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 68483.TXT HINTREL1 PsN: HINTREL1
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rect. Unfortunately, it doesn’t have anything to do with the International Criminal Court. In many respects, the ICC’s advocates

fundamentally confuse the appropriate roles of political and economic power, diplomatic efforts, military force, and legal procedures.

No one disputes that the barbarous actions under discussion are

unacceptable to civilized peoples. The real issue is how and when

to deal with these acts, and this is not simply or even primarily

a legal exercise. The ICC’s advocates make a fundamental error by

trying to transform matters of international power into matters of

law. Misunderstanding the appropriate roles of force, diplomacy

and power in the world is not just bad analysis, but bad and potentially dangerous policy for the United States.

Recent history is ripe with examples where strong military force

or the threat of force failed to deter aggression or gross abuses of

human rights. Why should we believe that bewigged judges in the

Hague will be able to prevent what cold steel has failed to prevent?

Deterrence ultimately rests on effectiveness and the ICC is unlikely to be that.

We have one excellent example that has just taken place in the

course of the air campaign over Yugoslavia where the Milosevic regime already faced an existing ad hoc tribunal dealing with former

Yugoslavia. And even in the face of an existing tribunal and indeed

even with precision guided weapons falling on the regime’s head in

Belgrade it still stepped up ethnic cleansing in Kosovo. Even

viewed in the light most favorable to the Court, I don’t think that

its supporters have adduced any evidence that the hard men of history like Pol Pot and Saddam Hussein are going to be deterred by

this Court. Holding out the prospect of ICC deterrence to those who

are already weak and vulnerable is simply fanciful.

Now, Mr. Chairman, in my testimony I go through at some

length a recent report about the Rwanda and Yugoslav tribunal

showing many of the defects that they already have. These two tribunals I think are at least some indication of the difficulties a permanent ICC would have. And if you were to look at a military

analogy, using these two courts as kind of prototypes of a new

weapon system that, to be frank about it, had some problems, I

think most reasonable people would say ‘‘let us order a couple more

prototypes before we make a final decision.’’

Creating the ICC based on the Rwanda and Yugoslav tribunals

is a little bit like saying, ‘‘Well, there are some problems with these

prototypes but why don’t we order 1,000 copies of them?’’ The Ackerman Report also points out that these are not inexpensive vehicles. The Yugoslav Tribunal’s budget last year was $94 million and

the Rwanda Tribunal’s budget was $68.5 million, which are not

small sums even for the United States.

Second, Mr. Chairman, another broad problem with the International Criminal Court approach is the idea that the international

search for justice is always and everywhere consistent with the attainable political resolution of serious political and military disputes, whether between states or within states. In the real world,

as opposed to theory, justice and reconciliation may be consistent

or they may not be and the idea of prosecution uberalles [ph] is

something that I think we undertake with great reservation.

5

I think the example of the South African Truth and Reconciliation Commission is an alternative way to look at past abuses by

prior governments. It is something that is important, and here we

have examples in the real world where we have seen the potential

adverse effects of the prosecutorial approach embodied in the International Criminal Court.

I discuss at some length in the testimony the Pinochet matter in

Chile. And let me just take that very quickly as an example. I have

no defense whatever for the allegations made against General

Pinochet, but I think it is critical to understand that in a country

like Chile that is today indisputably a democracy, the resolution of

the Pinochet matter is for the Chilean people. It is for their elected

government. It is an issue that still causes great passion in Chile

in political debate, and it is exactly the wrong thing to do as happened over the past few years for a loose cannon Spanish magistrate to attempt a judicial kidnapping of Pinochet in the United

Kingdom on the grounds that somehow this matter should be resolved in Spain rather than in Chile.

The example of the Spanish magistrate and his uncontrolled, indeed unaccountable exercise of power, should bring to mind exactly

the concerns that many of us have about the prosecutor in the proposed International Criminal Court. But, third, Mr. Chairman, and

I think most importantly, and this is where the proposed legislation I think is especially important, there are tangible American interests at risk here. I think that the ICC’s most likely future will

be weak and ineffective and eventually ignored, but there is another possibility: That the Court and the prosecutor will be strong

and effective.

In that case, the United States may face a much more serious

danger to our interests, if not immediately then in the long run,

and this is where the power of the prosecutor becomes so important.

But there are other aspects to the treaty that are objectionable

as well. For example, article 120 of the Rome Statute says that

there can be no reservations to the treaty. Mr. Chairman, if there

were nothing else objectionable about this treaty, that alone would

be a reason to reject it. The notion that the Senate in its consideration can’t make appropriate reservations is an unacceptable precedent for the United States.

Second, and even more serious, this treaty purports to cover the

nationals of non-signatories. If a country like the United States

doesn’t sign the treaty, citizens of the United States may nonetheless be subject to the jurisdiction of the Court if they commit prohibited behavior on the territory of a country that is a signatory.

Now I think it is unacceptable; unacceptable, not compromisable;

unacceptable, for the United States to be bound by a treaty that

it is not a party to. The Administration, and I am sure you will

hear this tomorrow, has a number of fixes they are going to try and

make to the provisions of the rules of the Court and the relationship agreement that needs to be negotiated between the United

Nations and the ICC itself that are not really going to address that

fundamental problem. There are small fixes that may or may not

be made to the problem created by article 98 of the Rome Statute,

but nothing addresses—nothing can address—the fundamental and

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to me dispositive philosophical objection that this treaty purports

to bind the United States even if it is not a signatory.

Now let us be clear here. Our main concern under the Rome

Statute should not be that the prosecutor will indict the occasional

American soldier who contrary to his or her training and doctrine

allegedly commits a war crime. Our main concern should be for the

President, the Cabinet officers, and the National Security Council

and other senior leaders responsible for our defense and foreign

policy. They are the real potential targets of the ICC’s politically

unaccountable prosecutor. This statute is incredibly vague, and I

give some examples in the testimony, of language that has a general moral proposition we could probably all agree with, but which

has never been applied in a criminal context and which if it were

attempted to be written into American criminal law, I have every

confidence the Supreme Court would declare void for vagueness.

The pattern of discussions we have had over the last 2 years

about these vague provisions and about a range of objections to the

Court typically are answered by advocates of the Court saying,

‘‘Well, that is not going to happen, that is not going to happen. It

is not a concern.’’ These are concerns. These are things that have

already begun to take place. And I want to give a couple of examples but I think one other thing to keep in mind: Whether I am

right or wrong the ultimate decision about the Court’s authority is

by the Court itself. Article 119 of the Rome Statute provides any

dispute concerning the judicial functions of the Court shall be settled by the decision of the Court, and that means that once they

have decided it is effectively out of our hands.

Now let me just take two quick examples and then I want to conclude, Mr. Chairman. One of the things that is still under discussion is the definition for the crime of aggression. This is something

of particular interest and particular risk to us. Very recently the

Secretary General of the United Nations, Kofi Annan, expressed

this view during the bombing campaign over former Yugoslavia. He

said, ‘‘Unless the Security Council is restored to its pre-eminent position as the sole source of legitimacy on the use of force, we are

on a dangerous path to anarchy.’’ Let me just repeat the key

phrase there. The Security Council as ‘‘the sole source of legitimacy

on the use of force.’’

That is to say that if NATO in the case of Yugoslavia, or the

United States unilaterally, undertook the use of force without Security Council authorization, under his view it would be illegal and

therefore would potentially subject the United States and its top

leaders to prosecution by the prosecutor. This is not hypothetical.

We have already seen it happen in the case of the international

criminal tribunal for Yugoslavia where a complaint was filed

against top NATO leaders by, what else, a group of law professors

arguing that several aspects of the NATO air campaign constituted

war crimes.

Now the prosecutor, Mrs. Del Ponte, rejected the assertion that

NATO’s actions amounted to war crimes, but by taking under advisement a complaint about NATO’s leadership and by ruling it insufficient for lack of intent, which is clearly one of the hardest elements to prove, she made it pretty clear that she thought she had

jurisdiction. So I think a lot of Members of Congress were quite

7

surprised that the tribunal that was supposedly set up to try Balkan war criminals had actually been investigating NATO. The conclusion that Mrs. Del Ponte made didn’t go to the overall question

of the air war’s legality, because she wasn’t presented with it.

There is another example that has also occurred recently that

brings the future very close to home. A group of families of Argentine sailors killed in the Falklands conflict in the early 1980’s in

the British sinking of the Argentine warship General Belgrano filed

a suit for damages in the European Court of Human Rights, arguing that the British sinking of the Belgrano outside of the self-declared 200-mile exclusion zone around the Falklands violated the

Hague Convention of 1907.

To begin with but it is important that the European Court of

Human Rights has effectively taken jurisdiction of the case. They

have remanded it for certain proceedings, but as I understand the

press reports they have concluded that they do have jurisdiction.

This is an argument that an act of war, not against civilians at all,

against a warship amounted to a war crime by the British government. And while this is a civil suit for damages, it is only a very

short step for somebody to conclude that the attack on the Belgrano

was the fit subject for the prosecutor of something like the International Criminal Court.

These risks of prosecution to top government decisionmakers in

critical periods are far from hypothetical, Mr. Chairman. It is the

reality we face. And that is the real risk of the prosecutor. He is

not political accountable. He is not subject to adequate oversight.

We in this country have had recent and very painful experience

with the concept of an independent counsel. And just in the past

few years on a bipartisan basis the independent counsel has been

laid to its well-deserved rest.

It just boggles the mind that after we have gone through and experienced what an unaccountable prosecutor can do, we are about

to, or at least some suggest, wreaking this concept on the rest of

the world. In conclusion, Mr. Speaker, I believe that our American

policy toward the International Criminal Court should be a policy

of ‘‘three noes:’’ No financial support, directly or indirectly, no collaboration, and no further negotiation with other governments to

try and improve it.

This institution is objectionable on principal. We should oppose

it on principal, and I think the American Servicemembers’ Protection Act of 2000 is a well-crafted instrument to help in our diplomatic efforts. Thank you very much, Mr. Chairman.

[The prepared statement of Mr. Bolton appears in the appendix.]

Mr. BEREUTER. Mr. Bolton, thank you very much. Secretary

Eagleburger, again welcome. You may proceed as you wish.

STATEMENT OF HON. LAWRENCE S. EAGLEBURGER, SENIOR

FOREIGN POLICY ADVISOR, BAKER, DONELSON, BEARMAN

AND CALDWELL

Mr. EAGLEBURGER. Thank you, Mr. Chairman. It is a pleasure to

be here. Congressman Gejdenson’s remarks this morning brought

tears to my eyes. I came close to weeping. It is the first time since

we have been associated for so many years where he said anything

8

nice about me and I want you to know that I will take that and

treasure it forever, Congressman.

Mr. GEJDENSON. If the staff has time, I am sure we can find

some other nice things I have said, and I will have them go back

and look at the record.

Mr. EAGLEBURGER. It is also good to be here and to see two people in the art work here that I have worked with and have great

respect for. That is Dottie Fasell and Clem Zablocky, who were

great chairmen and good friends and we miss them both, I am

sure. I can, I hope, be brief. First of all, I would like to associate

myself with Mr. Bolton’s testimony but I want to go on to a couple

of other items that he didn’t really touch, I think.

First of all, I spent a fair amount of time reading over the position of the Administration on this particular bill and it occurred to

me very quickly that under normal circumstances those were letters I would have signed myself when I was in the State Department except I don’t think so in this case and I want to try to explain why. There is a fundamental here that really bothers me and

that is that I have no argument whatsoever with the United Nations and its efficacy and the need to establish international organizations that can deal with difficult problems.

I, however, have a very serious problem if we go very far in conceding that the United Nations should be making international

law. This isn’t a democracy, the United Nations These are a number of sovereign states, some of whom the governments were elected by democratic means and a great many more who think other

than democratic and whose concerns about human rights in terms

of the way they demonstrate their own activities is substantially

different from the mouthings they now put forward in the United

Nations about human rights and so forth.

So I think we have to be very, very careful when we are prepared

to concede to that international institution without a great deal of

caution the right to make international law and, for example, and

Mr. Bolton referred to it, until we return the Security Council to

its sole responsibility, I don’t know that the Security Council ever

was solely responsible for the use of force.

It is certainly hopefully something that we can continue to turn

to but I would suggest to you that if there may well be times where

in the security interests of the United States there is a need to act

whether the United Nations as such is going to be willing to agree

to it or not. Most of the time I would hope that is not the case but

I can assure you that if we are not careful we will bind our own

ability to make decisions on when we should be acting in our security interests in ways that we, I think, unwisely will learn later

that we should not have done.

My point, gentlemen, ladies, is that I agree with Mr. Bolton’s

three noes. I do not see how it is possible to reform this institution

through negotiations on the part of the United States, who with

the best will in the world may be trying to remove the differences

and the difficulties but the fact of the matter is the fundamental

difficulty won’t be done away with. That Court is in my judgment

a creation that is both illegitimate and illogical.

I know that is going to upset most of my more liberal friends but

the fact of the matter is that particular Court, particularly since

9

the United States has said it will not participate, that particular

Court in my judgment should bear no real authority whatsoever

and we have to make it clear that that is our view of it. Now why

do I say that aside from the fact I think that we have dangerously

over time slipped into this concept of making international law by

global consensus, if you will, and it is a consensus that is in part

made by countries that have no interest in the very things that we

are most interested in trying to protect.

And I am worried that the very things that we agree through a

Court like this should be—international law will some day come

back and bite us where we shouldn’t be bitten. And my point here

really to summarize, and I have said this both in speeches and in

articles for the last 2 or 3 years, I think we Americans need to understand that we are going into a very uncertain century and anyone who thinks that because the Cold War is over the 21st century

is going to be a relaxed period of time, I think is fooling himself.

The Bosnias of this world, the problems in what used to be the

Soviet Union, I could go through around the world and suggest to

you any number of potential areas of instability, my point being I

think those instabilities are likely to increase rather than decrease.

And I would say to you that the next step, whether we Americans

like it or not, unless the United States is prepared in the next decades to be seriously interested in trying to maintain global stability

where it should be maintained that we are going to find ourselves

by the middle of the century having repeated too many of the mistakes we made in the 20th century.

What does that mean? That means hopefully that the United

States with wisdom and intelligence will be prepared to be involved

in trying to maintain or correct—maintain global stability or correct injustices where they occur, not that we are the world’s policemen but when an issue becomes so important to the United States

that we will be prepared to act whether others will or not.

And Congressman Lantos, for example, will remember just to try

to give you an example, that in the days when I was in the State

Department we used to argue fairly strenuously about whether the

United States should or should not do anything in Yugoslavia with

me taking the position and the Administration taking the position

no. But quite rightly Congressman Lantos and others felt very

strongly that we should be acting.

My point here is that it is precisely a question for the United

States to decide, not necessarily with the consensus of everybody

else. Now in the end when we went into Yugoslavia, yes, we had

an agreement, but I would suggest to Congressman Lantos that his

feeling as it was expressed to me at least in those years would have

been if necessary we had—this is such a crucial issue that we

should act on our own if we have to.

I am not trying to put words in your mouth, Congressman, but

I am saying the discussions we had very clearly led me to believe

that you felt that this was such a humanitarian disgrace that

something had to be done. I felt it was a humanitarian disgrace.

I did not feel the United States was in a position to act. That is

where the argument came. My point being we were arguing this

issue on the basis of what was in U.S. interests.

10

And I think we must continue to remind the rest of the world

that we are going to continue to make our decisions on the basis

of our best interests and that if, for example, we decide we want

to act in a certain area, we should not have our GIs subject to the

jurisdiction of this Court if somebody wants to make a point

against the United States and its actions. And I would suggest to

you, and then I will close, I would suggest to you that one of the

problems we are going to have in these coming years is that in fact

we are going to find more and more of the rest of the world that

resents the fact that we are what we are, resents the fact that we

are prepared to do what we can to defend human rights interests

and act against war crimes and are going to find ways, if they can,

to bring against us the same judgments that we are supposedly

making against others.

And we will, before this is over, before this century is out, and

long before this century is out if we continue along this path, we

will find ourselves being charged with war crimes by those who

have no business in the business of charging war crimes because

they themselves may well be war criminals or they will be neutrals

who resent the power and influence of the United States and will

be prepared to act against us if they can.

We are walking into, in my judgment, by even doing anything

more with this treaty, we are walking into a potential real mess.

I hate to say it because the United States should not always stand

against these kinds of issues. But, for example, in the mining treaty we had a serious responsibility to our troops in Korea and the

Administration did the right thing by saying, no, we will not join

the treaty. We have responsibilities as the United States that are

not faced by other countries and as a consequence of that we have

to act with all respect to the rest of the world. We on occasion have

to act like we recognize that we are different, that our responsibilities are greater, and that the decisions we take are more immediately influential in terms of whether global stability is maintained or not.

I don’t like to dwell on it so much because the rest of the world

is more and more, I think, resentful of the fact that we are what

we are but without us and an ability to act when we feel we need

to, the world is going to be a poorer place, not a better place.

Thank you, Mr. Chairman.

Mr. BEREUTER. Thank you, Mr. Secretary. Without objection, all

Members’ opening statements, if any, with extraneous material will

be made a part of the record. Hearing no objection, that will be the

order. We will now proceed under the 5-minute rule, and I will recognize Members in order as they were here at the start of the hearing.

Gentlemen, you make some very compelling points in varying details and degrees of specificity about the problems inherent in the

Rome Statute creating the International Criminal Court. Does it

follow from what you said that any International Criminal Court

would pose very serious problems to the United States or is it just

this International Criminal Court created under this treaty that

would create those problems?

11

To put it another way, would it be possible to have a permanent

international tribunal or tribunals capable of pursuing serious war

criminals that the United States could enthusiastically support?

Mr. EAGLEBURGER. Mr. Chairman, Mr. Bolton is the expert, the

lawyer, on this. I would simply say to you certainly this treaty

ought to be junked, ignored, whatever the point is. I suppose carefully drawn you could establish a treaty that would—and it would

have some limitations, would have to have some limitations to it

but that could at least move in the direction of being able to deal

with war crimes.

I think we would have to be very careful to make sure that it

didn’t limit our ability to act if we felt it necessary to act but I can

conceive in general of such treaty. It seems to me Mr. Bolton is

much more likely to be able to give you a useful answer.

Mr. BOLTON. Let me take a shot at it, Mr. Chairman. I thought

about this a good deal and I don’t think there is a way to create

an International Criminal Court designed to do what this is doing

consistent with our Constitution. And the basic problem is that the

Court and the prosecutor, and I want to stress again that what we

have got here is not simply a bunch of people in black robes dispensing impartial justice. In the institution of the prosecutor the

Rome Statute creates a very powerful source of executive authority

and takes it and just sort of puts it out there in the international

context.

Under our constitutional system, we are willing to accept prosecutors having the enormous authority they do because ultimately

they are politically accountable. The Supreme Court has said, for

example, that the Attorney General is the hand of the President in

fulfilling the President’s constitutional obligation to take care that

the laws be faithfully executed and the authority of the President

that flows from being elected by the citizens goes through the Attorney General down to U.S. Attorneys down to the lowest Assistant U.S. Attorney in any office around the country.

That is a kind of accountability that we find important and in

our system we have another kind of accountability. I just speak

here as an alumnus of the Justice Department having testified before other committees in this House and on the other side. Congress exercises very intense scrutiny over the policies and practices

of prosecutors at the Federal level. That is the kind of accountability and democratic legitimacy within our system that in the

main we accept. But the prosecutor of the International Criminal

Court doesn’t report to any elected executive authority. He is not

supervised by anybody except the Court itself.

Now people say in Europe they do that all the time, and my response is that is one reason they are Europeans and we are not.

We formulated a doctrine of separation of powers that said we are

going to split the executive power, the power of prosecution, from

the judicial power from the courts. That is fundamentally mixed together in this system. So, in effect, what the Rome Statute does is

create centers of power out there in the international environment

not subject to acceptable, at least in my view, constitutional or

democratic limitations and gives them authority without accountability or oversight.

12

I just find that unacceptable and for free people to find law being

made in ways by other people are not subject to their ability to

elect them or throw them out of office. Now, you know, Mr. Chairman, other governments have recognized this point and some governments are actually amending their constitutions to make sure

that their constitutions are consistent with the Rome Statute.

And I think because they correctly recognize that if the Court actually came into being effectively it would have authority over and

above their constitution. I find that unacceptable for the United

States as well. We have an acceptable democratic procedure here

to amend our Constitution. People may like the results, may disagree on substance, but we got a system that works. And I think

subordinating it to an ill-defined, unaccountable system larger than

that is a risk that we should not take.

Mr. BEREUTER. Thank you, Mr. Bolton. My time is almost up. I

would advise Members we are probably going to have time for a

second round so I will now call on the gentleman from Connecticut,

Mr. Gejdenson, for his 5 minutes.

Mr. GEJDENSON. Thank you, Mr. Chairman. I think we clearly

agree that this generation of political leaders shouldn’t be amending the Constitution. They probably wouldn’t improve on what Jefferson and the others did originally. But it seems to me you put

before us the choice, it is either war or law, and I think there has

got to be something between there. And I guess, Mr. Bolton, you

come down that we should deal with this as the United States

dealt with Mr. Noriega and Israel dealt with Mr. Eichman, that we

kind of go in and grab the people that we think should be put on

trial and then we put together a system here and try them.

Mr. BOLTON. I think there are a variety of different ways in

which this can be handled, and I can give you some specific example concretely today. In the case, for example, of Indonesia, there

is a real question what to do with Indonesian military officers who

are alleged to have committed war crimes in East Timor before,

during and after the U.N. referendum. Now there is one proposal

that says let us create another ad hoc tribunal, which would be

necessary because the ICC doesn’t exist yet.

Let us create another international tribunal to try these allegations against the Indonesian military. The other alternative though

is to have the Indonesian government try the Indonesian officers

but I think this is—— Mr. GEJDENSON. I only have 5 minutes until I have to run up to

another meeting. My problem is that the legislation goes beyond

just concerns which we all have about this and I think there are

reasonable concerns out here. But it prevents us from providing information in the case of a prosecution. The Court gets set up with

or without us. These countries go and they get to whatever the

magic number is, 60. They have 14 already. The Court is in operation.

We have evidence that would put Milosevic away. What this legislation says is we can’t give it to them. An American is prosecuted

in the Court. It exists with or without us. We have evidence that

is exculpatory. This legislation says you can’t hand that evidence

over. And for God’s sake, if the Court is going to happen with or

without us doesn’t it make sense for the Administration to engage

13

in at least a continuing dialogue, where let us assume it is going

to be far from perfect.

Let us even assume it is going to be bad. Isn’t it a little mindless

to say we can’t let those people over in the Administration even

talk about improving it. I think it undermines us internationally.

It undermines us in practice because you will end up with something that is worse without our input. At the end of the day I may

end up in the same place that you are, Mr. Eagleburger, and say,

no, this doesn’t work because of our singular role in the world. We

need to not accept this at the moment.

But how can you tell the Administration don’t try to make it better, don’t try to help prosecute a criminal, and don’t try to defend

an American who is being falsely accused. Mr. Eagleburger, I know

you can answer this in a minute and 50 seconds.

Mr. EAGLEBURGER. I can answer it in 10 seconds, Mr. Gejdenson.

First of all, let me make the point with regard to Noriega and Panama and so forth. The ultimate choice for this democracy, the ultimate answer to the question of whether we do that or don’t do it

and how we answer for it rests in the hands of you people right

here and the American people. When we do the Panama sort of

thing it seems to me that is—because we are what we are and we

are different than 99 percent of the rest of the world our political

leadership is answerable to you and to the American people.

That is to me a critical difference here. But, second, and the

point that you asked about, why can’t we continue to try to make

this thing better or at least not so bad, and my only answer to you,

Sam, excuse me, Mr. Chairman—Mr. Congressman, Mr. Gejdenson,

whatever the proper term is—I haven’t got you Chairman yet, not

for a while.

Mr. GEJDENSON. It is hopefully prophetic but go ahead.

Mr. EAGLEBURGER. But anyway on that last point the issue it

seems to me now is so clear that no matter what we do to try to

make that treaty less bad in the end it is going to be so bad anyway that we are probably far better off right now to say we want

nothing more to do with this and fellows, you better understand we

are not going to accept its applicability to anyone that is a United

States citizen.

I admit to you, you can play around with it and try to change

it if you can. Like, for example, trying to give information about

whomever when some Court asks for it, and I don’t mind that issue

being dealt with if you can but I would say that it is still in my

judgment far better. It says here I must stop and I will in 10 seconds. It is far better that we just simply say we wash our hands

of this. There is no way it is going to turn out well under any circumstances and not playing around with it at all implies that we

are prepared to deal with it.

Mr. BEREUTER. Thank you. The time of the gentleman has expired. Here in order at the beginning of the hearing, and then we

will alternate across the aisle, Mr. Lantos, Mr. Hastings, Mr.

Delahunt. The gentleman from California, Mr. Lantos, is recognized.

Mr. LANTOS. Thank you very much, Mr. Chairman. Let me say

at the risk of embarrassing Secretary Eagleburger that in my 20

years in this body I have never learned as much from anybody as

14

I have learned from you nor have I respected anybody more than

I have respected you. And since we are making these public concessions at least on my part, let me say I have never had more affection for anybody than you.

Mr. EAGLEBURGER. Mr. Chairman, could I ask if I could leave

now? It can’t get any better.

Mr. LANTOS. It is going to get better.

Mr. BEREUTER. Sorry, Mr. Eagleburger.

Mr. LANTOS. Let me say I am very pleased to see Mr. Bolton. I

appreciate his testimony. I would like to take a different tact from

my two friends thus far and I would like to ask the question, the

basic question, of why we are dealing with this legislation, which

is entitled the American Servicemembers’ Protection Act. I tell you

we are dealing with the legislation for very simple political reasons.

In a few months we will be voting and our colleagues on the other

side of the aisle would like some of us to vote against protecting

American servicemen.

This is a wonderful campaign commercial. It has great appeal.

The only other thing that I could think would have greater appeal

would be the American Mothers’ Protection Act, and knowing the

creativity on the other side within a week I expect the Majority

Whip or somebody introducing that legislation. We will have hearings on it. It will be an atrocious piece of legislation and some of

us will be compelled to vote against it.

I am always interested, Mr. Chairman, in dealing with the agenda but I am also interested in dealing with the hidden agenda, and

I am anxious at the outset to bring out the hidden agenda. The hidden agenda is to make those of us who in general have some sympathy for an International Criminal Court recognizing all of the

reservations that our two guests have raised very properly to have

us get on the record that we are against protecting American servicemen. That is the purpose of this legislation.

Now let me deal with some of the issues you gentlemen have

raised. Secretary Eagleburger, I fully agree with you that you and

I are in total agreement on the issue that occasionally when necessary the United States must go it alone. This is in all national

interests and it is in the global national interest and with respect

to Yugoslavia while my preference was early action by NATO, I

would have preferred early action by us to no action whatsoever.

You are correct.

Now this particular proposal does have some flaws but since you

have highlighted some which are present let me, if I may, point to

cases where with all due respect you may have contradicted yourselves. On November 16 appearing on Night Line, Secretary

Eagleburger, this is what you said.

I am not particularly clear on all of the arguments as to why we haven’t joined

International Criminal Court. My personal view is that those kinds of questions

ought to be handled and that we should certainly enter into this Court precisely to

begin to get at the kinds of problems in an orderly way that the Pinochet case demonstrates with regard to the need to do something about it but it certainly is disorderly at this point.

I am not suggesting that there is anything wrong in changing

your position. I have changed my position on many issues over the

years as I have become wiser and more knowledgeable, and this is

15

true of others. But I think it is important to realize that just 2

years ago your general position was that we ought to join the International Criminal Court, and you probably said that, Mr. Secretary, because while your point is very well taken that the majority of the members of the United Nations are dictatorial countries

and how can we have those people serve on the criminal court

when the leadership was not elected as ours was.

May I remind all of us that at Nuremberg Stalin’s representative

participated as a full-fledged member of the Nuremberg trials. I

welcomed Stalin’s representative because certainly the Soviet

Union earned the right to participate in a trial that dealt with Nazi

criminals. This is not an ideal state of affairs and all of us, both

you and all of us on the panel would like to see a world made up

of only democratic countries but clearly that is not the case.

And the fact that occasionally non-democratic countries may play

a role and in the case of the Nuremberg trials played a very pivotal

role, a very pivotal role, is in the nature of this very imperfect

world we live in. Now I do believe—my time is up. May I just make

one more point, Mr. Chairman. It is a self-serving point. I have legislation pending calling for the United States to rejoin UNESCO.

Some years back properly we left UNESCO because we had some

very severe reservations about UNESCO. I shared those reservations and I support the government’s decision to pull out of

UNESCO.

Most of the problems, the most serious ones with UNESCO, have

now been reasonably solved. There is still no willingness on the

part of this Congress to rejoin UNESCO for reasons that escape

me, and I think that there is a danger as we exclude ourselves

from participating in international organizations which are admittedly flawed and imperfect and subject to improvement that we will

create sort of a new kind of isolationism that rejects United States

participation in legitimate international ventures which given the

nature of the world are admittedly flawed. I would be grateful if

both of you would react.

Mr. BEREUTER. The time of the gentleman has expired. Secretary

Eagleburger, do you specifically have a question?

Mr. EAGLEBURGER. Yes, and I will be quick. Congressman Lantos, you are quite right on the television comment that this was focused then on specifically the Pinochet case 2 years ago. I feel so

strongly and have all along that it was an absolute corruption of

proper international law to have acted against Pinochet the way

they did. And my point then was this is a disorderly system and

what we are seeing now with regard to General Pinochet continue

if we are not careful and perhaps with this Court we can regularize

these things.

Now 2 years later I am going to tell you I don’t think—you know,

I don’t think the Court can do that. I do think that the Pinochet

case does demonstrate the need for trying to find some way to regularize some way to incorporate into international law what I

would consider to be appropriate means of dealing with the

Pinochet problem and my basic point would be the Pinochet problem should have rested with the Chilean government and not much

of anybody else.

16

So I agree I said what I said. I think it was under different circumstances. Let me simply conclude again, Mr. Lantos, I agree

with you the United States should not exclude itself under almost

any circumstances. We are the world’s leader and we better act like

leaders. I don’t deny that at all.

I will, however, say that in this specific case as you look at the

consequences and more important, frankly, sir, as you look at the

process that has led to this kind of a decision to create this Court,

which I find it so anti-democratic in its own way, maybe that is the

wrong term, but at least I find it so much threatening in the last

analysis, the very things that we hold dearest within the Constitution and the dangers that those will over time slide away that I

just don’t think this is a particular case for continuing to participate, but under normal circumstances I agree with you completely.

Mr. BEREUTER. I thank the gentleman.

Mr. BOLTON. Could I just make one very brief comment?

Mr. BEREUTER. Mr. Bolton.

Mr. BOLTON. I think it goes beyond the inappropriateness of nondemocracies participating. You know, other defects of this Court include the absence of jury trial, the absence of a right of confrontation of cross-examination and at least in the minds of some real

limitation on the protection against self-incrimination. And debating with law professors over the past couple of years about that,

I have pointed those things out and the response of many have

been, ‘‘Well, but in European systems of justice, various European

systems, they don’t have these provisions, and, you know, you got

to have some European provisions and some American provisions.’’ I would have to say, Mr. Lantos, I don’t accept that. I view this

as so flawed in so many respects, the idea that a jury trial is not

guaranteed or that a defendant doesn’t have a right of confrontation of witnesses who are testifying against him, that violates fundamental precepts of our own justice system. I just think that it

may be acceptable to Europeans, but it should not be acceptable to

us.

Mr. BEREUTER. The gentleman from Massachusetts, Mr.

Delahunt, is recognized.

Mr. DELAHUNT. Thank you, Mr. Chairman. You would concede,

however, Mr. Bolton, that the European system, while it isn’t our

system, at least thrives in a democratic society.

Mr. BOLTON. Sure. And the question is whether using aspects of

their system that we have rejected for our own domestic purposes

should be acceptable in the context of an International Criminal

Court. And I think the absence of a separation of powers is——

Mr. DELAHUNT. I share that concern. I find disturbing aspects of

the European system but I don’t think we just simply want to discredit European democracies and leave the impression that the

legal system is undemocratic. Clearly, it is not. I mean you are

right about a trial by jury and right of cross-examination, etc., but

I think Secretary Eagleburger—I think it maybe was you, Mr.

Bolton, that just made the statement that we should act like leaders.

I understand your concerns about this particular treaty but to

get back to the legislation that has been submitted by the Majority

Whip. I mean to insist that we do not prohibit us from collaboVerDate 11-MAY-2000 17:09 Jan 16, 2001 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 68483.TXT HINTREL1 PsN: HINTREL1
17

rating in an investigation which would lead to justice as we could

define it. OK. I conclude that you believe that the treaty itself, the

ICC, is so flawed that we should just kill it.

Am I wrong to infer that you see the legislation as a means to

accomplish that because there are so many aspects to the legislation itself that are truly absurd such as lack of collaboration in an

effort to bring Milosevic or someone to—particularly if we possess

information that can accomplish that particular goal, which we

could agree to. I mean aren’t there other ways to kill it rather than

to do something that is hostile to what I think would be overwhelming, unanimous agreement about a particular pattern of heinous conduct?

Mr. BOLTON. Mr. Delahunt, let me address both the general and

the specific, if I may. First, I think the legislation could be extremely useful to either this Administration or a subsequent Administration in convincing other governments not to ratify the ICC

itself.

Mr. DELAHUNT. Then you have answered my question. I think

what you are saying is this is a message. We will take such an extreme stand that we want to kill it. What I think is, what I would

suggest is I think a more honest and for us a more correct position

in terms of what we stand for, OK, is to accomplish that goal

through other means.

Mr. BOLTON. May I just continue because I think it is important.

There are other aspects of this, whether the Court comes into existence or not, that in this legislation that gives even the Clinton Administration leverage in its negotiations with other governments on

such things as status of forces agreements. You know, I am a creature of the executive branch; in a perfect world, I would have hoped

that we wouldn’t be in the fix we are in right now to begin with

if the Administration had not led us into this swamp.

But in the absence of that, I think it does help and does send

a clear signal to other governments that really think the Administration is still trying to find a way to sign the Rome Statute, that

this statement by Congress——

Mr. DELAHUNT. I think I understand the position. In terms of deterrence, I think you indicated that there is no data in terms of deterrence. I served 20 years as an elected prosecutor myself up in

the Boston area. I have always had a problem with the concept of

general deterrence. We always hear about sending the message of

deterrence. Sometimes there is no one listening to the message.

This is simply going to happen no matter how draconian a particular sanction might be because there is nobody listening but—

my experience always led me to conclude that the more sophisticated and the more educated do listen.

Mr. BOLTON. I didn’t mean to say I don’t believe in deterrence.

What I am saying is this Court will not fulfill this function in much

the same way that the International Court of Justice, which handles disputes between states, has fallen into such——

Mr. DELAHUNT. Right, but I guess we have a disagreement there

because it is difficult to survey what transpires in individual minds

and how people reach decisions. But over an extended period of

time, and I am not referring specifically to this Court, but if there

18

were consistency decisions that were made might not well have

been made if there were a deterrent. Secretary Eagleburger.

Mr. EAGLEBURGER. Basically, I am going to agree with you on

the issue of deterrence. I think it does make a difference. I would

only suggest to you that what I hope will deter the next Milosevic

is not some Court but the fact that he is still cleaning up Belgrade

and rebuilding bridges and so forth.

Mr. DELAHUNT. Could I disagree with you. Let me tell you something. My experience has been that people like Milosevic are not

necessarily concerned about cleaning up Belgrade. They are concerned about their own back.

Mr. EAGLEBURGER. No, you are quite right about Milosevic. All

I am saying is the next time around, the next potential Milosevic,

the fact that he caught a good bit of hell afterward, may be something of a deterrent——

Mr. DELAHUNT. Let me again respectfully disagree. I have to tell

you that my experience dealing with very sophisticated criminals

is that they are only concerned about themselves.

Mr. EAGLEBURGER. I am not arguing that. I guess if I pin it quite

so directly to Milosevic I can’t make the argument. I am saying,

however, that there are these pipsqueak leaders out here that if

they see their country about to be very badly damaged may decide

not to do something. However, whether that is an argument or not,

I think we need to keep one thing very clearly in mind. Deterrent

or not, when it comes to dealing with war crimes and trying to

punish people for them, this will work perhaps with the little countries, but let me tell you, do you conceive possibly of bringing President Putin to the international court because of what he is doing

in Chechnya, for example? Of course not.

One of the things we need to keep in mind here is on the little

wars the little countries maybe this makes a difference. It doesn’t

make a difference at all with the bigger ones because we will never

get them to a Court.

Mr. BEREUTER. The time of the gentleman has expired. The gentleman asked for 30 additional seconds. Unanimous consent for 30

additional seconds.

Mr. DELAHUNT. I thank the Chairman because I won’t be here

for a second round but I really do wonder if the Chilean government would have acted but for that out of control Spanish magistrate that you referred to.

Mr. BOLTON. You know, we just had an election in Chile and the

new president who has come in had a different view of what to do

with Pinochet and other military figures. This is something that

has been the subject of ongoing discussion, not just in Chile but in

Argentina and Uruguay, and a number of countries. And the point

that I would make, and the point I wanted to make to Mr. Gejdenson about Indonesia, is that the Chileans may not do what you

would do or what I would do. The Indonesians may not conduct the

kind of trial you would conduct or I would conduct. But there is an

element of national maturation and assuming democratic responsibility that they ought to be allowed to——

Mr. DELAHUNT. I don’t disagree with that but the treaty itself

does provide for the retention of jurisdiction.

19

Mr. BOLTON. Well, hypothetically it provides what is called the

doctrine of complementarity, which was made up for this Court. We

don’t know sitting here today in fact whether the resort to national

courts will be permitted or not, even for the United States.

Mr. DELAHUNT. But let us make it that way.

Mr. BEREUTER. The time of the gentleman has expired again. I

will get into the matter of complementarity in the next round. The

gentleman from American Samoa, Mr. Faleomavaega, is recognized.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. I certainly want

to compliment and thank both gentleman for their testimony this

morning surely with tremendous eminence and history in terms of

the important positions that they held with the previous administrations. I do have a couple of questions. It seems like what we are

looking at on several fronts is that our national sovereignty seems

to be in question concerning the proposed Rome Statute.

Our Constitution allows us to conduct foreign relations with

other countries, treaties and of the sort, which is why, for example,

we are members of the United Nations. We live in the reality of

a world where there seems to be a desire for one consistency, and

perhaps that is the reason why so many nations of the world are

motivated to establish an International Criminal Court.

You can talk about Pol Pot and extermination of 2 million Cambodians. Nothing is done about that. You can talk about Stalin’s extermination of 60 million Russians, if I am correct on my history

on that. You can talk about—you mentioned Indonesia, Mr. Bolton.

You can talk about the extermination of 300,000, 200,000 East

Timorees and 100,000 West Paupunig [ph] Indians by both Sukarno and Suharto and their dictatorship. You can talk about

Rwanda. You can talk about Milosevic exterminating 250,000

Yugoslavians before we got involved in Bosnia.

So if you are looking from that perspective, we haven’t done anything as a world community. I took notice also in your statement,

Mr. Bolton, where you said that Pinochet should have been handled by the Chileans. Why did we not allow Noriega to be handled

by the Panamanians. We went over there and just got him out. It

was in our national interest. I know that. I do agree with Secretary

Eagleburger’s statement everything and anything should always be

our national interest and ought to be in terms of establishing a

world court or being a member of the United Nations or whatever.

It should always be in our national interest.

But my question is what would the world have been like if we

did not join as a founding member of the League of Nations, the

United Nations, a member of the Security Council, and if you felt

that we have compromised our national interest by not being members of these important organizations.

Mr. BOLTON. Well, I am a supporter of United States membership in the United Nations, and I have never been otherwise. The

question with respect to the International Criminal Court is not

the broad question of involvement in international affairs. The

question is whether this is both a useful and a workable instrument to accomplish the goals that you are talking about. And for

the reasons that I have stated before, and I won’t repeat, I don’t

think it is.

20

So it raises the question in the case of the International Criminal

Court, as in the case of the International Court of Justice formed

in 1945, which is simply not a player in international affairs today.

The United States has withdrawn from the mandatory jurisdiction

of the ICJ, and it simply has no impact because it has been politicized. The judges vote purely along political grounds, and I think

it has next to no respect and certainly very little following in this

country.

What is striking about the ICC is that the argument that its proponents make are exactly the same arguments that were made in

1945 about the ICJ, and yet there is no new evidence that is adduced to show that this Court will be any more successful than the

International Court of Justice.

Mr. FALEOMAVAEGA. If I am correct, I think, and of course we

have our constitutional procedures to follow, with the advice and

consent of the Senate it so happens that this Administration accepts the ICC and what it purports to do at least to help. Are we

jumping the gun perhaps that we ought to let the Senate follow its

procedures and advice and consent and know exactly the specifics

in terms of whether or not the Rome Statute should be applied to

our own country.

Mr. BOLTON. I don’t think so in this sense; other countries are

considering at the moment whether or not to ratify, and only 14

have. You know, it has been 2 years since the Rome Statute was

signed, so having 14 ratifications is not exactly moving with lightning speed. And I think that vigorous leadership by the United

States could have an impact on the decisionmaking of other countries, so I hope Congress would go ahead.

Mr. FALEOMAVAEGA. Well, one thing that I know for certain that

our national sovereignty certainly I do not believe has been compromised in any way. This is the reason why we have not accepted

the Law of the Sea Treaty. We have not accepted the Kyoto Treaties in terms of the global warming issues, the land mines as Secretary Eagleburger had stated earlier, much to the chagrin and

protestations of many nations of the world about land mines.

So I don’t see where we are compromising our efforts by this Administration’s efforts to see that our sovereignty is not compromised by the provisions of the Rome Statute. This is where I am

having a little problem in trying to agree with you gentlemen and

your concerns.

Mr. BOLTON. Secretary Eagleburger wanted to get in if he could.

Mr. BEREUTER. The gentleman may respond.

Mr. EAGLEBURGER. I just want to come back to one thing you

said, sir, which is you mentioned the Noriega thing and we went

and got him. This is in a sense precisely the distinction I was trying to make. You can argue whether we should have gone to get

Noriega or not but the fact was he was in charge of a country.

Pinochet had already been removed. We believed that Noriega was

enough of a problem for us and for most Panamanians that we in

fact needed to act unilaterally to get rid of him to get him out of

there.

All I am saying here is it is precisely that kind of action on the

part of the United States, whether you agree with a specific act or

not, that we must be careful to be able to preserve our ability to

21

do. That is all I really was saying. And I think this treaty tends

to act against our ability.

Mr. FALEOMAVAEGA. So we should have done the same for Saddam Hussein?

Mr. EAGLEBURGER. No. Well, we don’t want to get into that now,

do we, really?

Mr. BOLTON. If we had him in custody.

Mr. BEREUTER. Many of us would feel more comfortable with unilateral action if in fact the President would seek the advice of Congress in a very formal fashion as they did in the Gulf War but that

was not done in Bosnia. It was not done in Kosovo. And basically

you have a decision ultimately made by one man as to whether or

not the United States is going to defy international pressure and

concern.

Mr. EAGLEBURGER. Mr. Chairman, that is absolutely correct. The

ability of an administration to do what it should do with regard to

consulting with the Congress is a different issue. I will say to you

I think that with regard to the Kuwait war we worked very hard

in fact to do the consultation before we acted.

Mr. BEREUTER. Well, indeed it happened and we had the longest

debate in the history of the House of Representatives on that issue.

Ultimately the Congress approved the President’s decision to gather a multi-national force. The gentleman from New Jersey, Mr.

Payne, is recognized.

Mr. PAYNE. Thank you very much, Mr. Chairman. I certainly

have a different opinion regarding this legislation. Actually I really

have to admit that I did not read it carefully before I came here

but just listening to the testimony, and that is why these hearings

are so important, that I certainly am more awakened about how

devastating this thing is in my opinion. I certainly am not a diplomat and have a lot of respect for Secretary Eagleburger and what

his whole career has been.

But I think we do have to be careful when we just say that, you

know, there is no other people in the whole world like us. I mean

if I were a Canadian, I would be a little upset, I guess, if my cousin

lived in New York and I lived in Toronto or even some strong British friend that lives in London that has been supportive of U.S. policy and we had been partners.

I would just feel a little uncomfortable, of course, even living in

Lagos in Nigeria. But I think that one of the problems that we do

have is that we do have to be the strongest nation in the world.

We do have to preserve. We are the world power. There is nothing

that we can do about that. And it is great and that God did shed

his light on us and we got the purple mountains majesty from sea

to sea.

But there is the world and there are other people whose blood

is red and eyes are blue and the rest. I think when we continually

talk about only us outside—I think we are going down the wrong

track when we just figure that we can build these missile defenses

that come like 300 miles from the target and that we can stand

alone, put another billion in and maybe you will get 200 miles from

the target.

We can’t stand alone in this world and the quicker we understand, I think the better. That does not mean that we are weak.

22

I mean this bill talks about cutoff aid to anybody who joins the

treaty like the rest of the world, IMED or talking about any kind

of assistance. This is one of the most ridiculous pieces of legislation

I think I have seen. If you are talking about the United States with

our 270 million people standing against the other 8 billion people

in the world, you know, our grandchildren are going to have a very,

very isolated life.

And, you know, to be against everything, land mines, I still don’t

understand why we are against land mines. Who is going to walk

down from North Korea to South Korea so you have land mines

that—I guess land mines keep people from walking down. So I

guess they are going to walk down from North Korea to take over

Seoul. It makes no sense at all. It is a poor excuse. It is not even

an excuse.

We are even against—let me ask Mr. Bolton, are you in favor of

the Decertification Treaty? That is the one that says the desert is

coming down from the world and the world is drying up and that

we ought to do stuff to prevent it from happening. The Senate has

not ratified. Let me just ask. I want to ask. I know where you

stand on ICC and Chow soldiers and land mines and all the other

things. What about the Decertification Treaty? Have you looked at

that one?

Mr. BOLTON. I have to confess I am not an expert on the Decertification Treaty.

Mr. PAYNE. OK. We are against that too. We are against the

desert coming down, taking—I mean it is amazing that the U.S.

Senate—believe me, we are not supposed to speak about the other

House, thank God, but this is just amazing. Now let me just ask

one quick question since my time has probably almost expired. But,

like I said, I didn’t read this thing carefully. I don’t want to say

it too much. One of my opponents will take it off the record.

But let me just ask this question. I just want to be clear about

it. Now either one of you can answer this. Maybe Secretary

Eagleburger will mention it. You believe the real risk of the Court

is a politicized prosecutor or Court would, what do you call it, indict a high U.S. Government official ultimately responsible for alleged war crimes but not U.S. soldiers.

There was this question about soldiers being given—that the one

that said that soldiers should go somewhere, he would be indicted

and not the ground troops.

Mr. BOLTON. Sure. If you read the provisions of the Rome Statute dealing with who is liable for alleged war crimes or crimes

against humanity, it clearly permits the responsibility be taken up

the chain of command, and that those who ordered the activity in

question or in some circumstances those who knew about the activity or should have known about the activity can be liable as well.

So this is far from a hypothetical. I think it is a very real intent

of those who drafted the Rome Statute.

Mr. EAGLEBURGER. May I make—— Mr. PAYNE. Yes.

Mr. EAGLEBURGER. I would make one point here, which is again

I basically agree with most of what you said. I have to make a distinction between—let me reverse myself there. There is no question

that one of the problems we will face as we go into this next cenVerDate 11-MAY-2000 17:09 Jan 16, 2001 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 68483.TXT HINTREL1 PsN: HINTREL1
23

tury is a neo-isolationist attitude in this country and we have to

be very careful of it and that means most of the time we have to

participate. I am not arguing any of that. In fact, I think it is a

big danger that we may in fact try to isolate ourselves.

However, it is in this specific case and only this case that I would

argue otherwise, and I argue it not simply on the basis of the examples that you and Mr. Bolton have talked about, namely, an unruly prosecutor or whatever. I have made the point and I will just

make it one more time and then I will shut up, but my point is

in my judgment there is a critical factor here that we are all ignoring, which is this the way to make legitimate international law

where a group of countries get together and without the responsibilities the United States has and will have to have whether we

like it or not draw up this treaty which will, if nothing else, make

it more difficult for the United States to do what it feels it has to

do internationally to maintain stability in the future.

And I worry, I don’t want to get the United States as the world’s

policeman but on the other hand I don’t want to lock our hands any

more than we have to in terms of our ability to act when we feel

we must in the coming decades. And one thing this country has

that not an awful lot of other countries have is that when decisions

are made by the executive in the end there is the check of the Congress and the check of the American people, and they vote, and

that to me makes a great distinction between us and an awful lot

of the rest of the world.

Mr. BOLTON. Mr. Chairman, could I just make one more point

very quickly in response to Mr. Payne? Mr. Payne, I am sure you

remember the tragic case of Colonel Higgins, who was a U.S. officer

assigned to the U.N. Troop Supervisory Organization

headquartered in Jerusalem who was captured by terrorists in Lebanon when he was serving there. And he was brutally tortured and

killed in the late 1980’s, 1989. Colonel Higgins was selected out of

the 30-plus governments represented in UNTSO by military officers, selected quite clearly because he was an American. There is

no doubt about it.

And that is why, for example, the provision in this bill section

5 on restricting American participation in peacekeeping, unless the

Americans involved were protected against the jurisdiction of the

International Criminal Court I think is a real and important point,

and goes to the question of why we are treated differently than the

Canadians. Thank you, Mr. Chairman.

Mr. PAYNE. Yeah, just in response to that. There is no question

that we always are going to be treated differently. You all made

that case, which I agree. We are a super power, the only one. But

I do think that to the extent of what this legislation talks about

about restricting, for example, IMED, or other kinds of—any kind

of assistance to any country that becomes a party to this, we are

really, I think, treacherously going down the wrong path.

Mr. BEREUTER. I thank the gentleman. I would recognize myself

now for an opportunity to, with my colleagues and their opportunity forthcoming, wind up with a few questions to you that I

think ought to be asked. I have two with a third comment. The

Clinton Administration is trying to get the ICC to forego criminal

24

jurisdiction over Americans and persons of other countries that are

not signatories to the Rome Statute.

First, how do you assess their prospects for success, and if they

do succeed do you think that American servicemen and other governmental officials will in fact be safe from prosecution by the ICC?

Second, we have had the subject of complementarity come up. It is

imbedded in the Rome Statute. How does complementarity work,

Mr. Bolton? I think that might be best addressed to you. Describe

for us how it might protect an American president or a Secretary

of State or a Member of Congress against prosecution by the ICC.

Third, I would just observe if you have any comment on the observation that Israel did not sign the Rome Statute. Now you

would expect that a country with direct experience and its people

with genocide would feel compelled to stay outside an institution

that is ostensibly designed to punish and prevent genocide and

other war crimes. Do you have any insight about that? And I call

on each of you to respond to that part that you feel most comfortable in addressing.

Mr. BOLTON. Mr. Chairman, perhaps I could go first. On the subject of the Court’s jurisdiction over Americans the Clinton Administration negotiated very hard in Rome to try and carve out exemptions from the Court’s jurisdiction so that states that did not sign

the Rome Statute could not have their personnel subjected to the

jurisdiction of the International Criminal Court. It was an issue

that was explicitly raised. It was explicitly rejected.

Now I have followed the Administration’s work in the various

U.N. preparatory commissions as they tried a variety of different

ways to get out from under that problem, and specifically the latest

thing they had been negotiating under article 98 of the Rome Statute having to do with not simply jurisdiction but the physical act

of surrendering a defendant to the authority of the Court. I think

the chances of their negotiating successfully to get the kind of exemption that they are trying to get are close to zero; the reason is

that to get the exemption that they were denied expressly in Rome,

you would have to assume that the other states party to the treaty

had either gone to sleep, or had given up their objection.

I don’t see any possibility that that is going to happen. I think

this is an exercise that is doomed to failure. What they have

achieved so far, at best, can be described as ambiguous, and it is

because people know that the next stage is potentially dispositive.

But even if they got something like what they have achieved already, bearing in mind that the ultimate decisionmaking authority

over rules of evidence and elements of crimes for the Court is the

Court itself, I think it is very, very unlikely that the Court is going

to rule against a basic decision taken at Rome over the Administration’s objections. So I think this entire effort, quite frankly, is a

waste of time.

Mr. BEREUTER. Mr. Bolton, just to set the context here again for

the second question. Some supporters of the ICC say that the concept of Americans being prosecuted is overblown and they point to

complementarity imbedded in the Rome Statute as the reason for

their comments so now can you take on what complementarity

does, how it is supposed to work?

25

Mr. BOLTON. Mr. Chairman, the theory of complementarity, and

I stress the theory of complementarity, is that in the first instance

the Court would defer to the national judicial systems of countries

of defendants alleged to have committed war crimes. In theory, it

is only when that system fails to function or functions inadequately

that the prosecutor would step in. First, Mr. Chairman, we have

absolutely no experience with this doctrine in practice. This is

nothing but a prediction based on hope, not on experience.

And, second, if you actually read the provisions of the Rome Statute that embodied the principle of complementarity, I think you

can see the ambiguity. And I will just very quickly, if I may, read

one where it says the Court will not take jurisdiction over a case

where a state has investigated an alleged war crime, and now I am

quoting from the Rome Statute, ‘‘and where the state has decided

not to prosecute the person concerned unless the decision resulted

from the unwillingness or inability of the state genuinely to prosecute.’’ So let us say that a prosecutor, a military prosecutor in this

country, looked at a particular circumstance and made a decision

for lack of sufficient evidence or whatever that the prosecutor was

not going to proceed against a particular American serviceman. It

is up to the International Criminal Court to say whether they accept that or not whether the state genuinely decided not to prosecute or whether it was just unwilling to.

What that means is that the theory of complementarity is ultimately dictated in reality by the decisions of the International

Criminal Court and that is a cession of authority and sovereignty

to an as yet unestablished, untested Court that I find excessively

risky, and not just in the case, Mr. Chairman, of a GI, but in the

case of our top national decisionmakers. That is what I am really

worried about.

Mr. BEREUTER. Thank you. Mr. Eagleburger, Secretary, do you

wish to address any of those or do either of you wish to address

or speculate why Israel did not sign the Rome Statute?

Mr. BOLTON. Could I maybe take a shot at Israel and then let

Larry handle the rest of it. The particular provision that Israel was

concerned about was in the statement of offenses contained in the

Rome Statute for war crimes. There is language, and I won’t get

into detail here, but language that basically changed the applicable

language from the fourth Geneva Convention in a way that made

it much more likely that Israel could be, and its practices in the

occupied territories of Gaza and the West Bank, could be subject

to prosecution.

Now this sounds like it is just a technical kind of dispute over

the movement of persons by an occupying power into occupied territories, which is what the U.S. position about Gaza and the West

Bank has been consistently since 1967. But really, Mr. Chairman,

this shows exactly the risk of politicization inherent in the International Criminal Court. To me it is only a question whether the

first complaints filed by the prosecutor are going to be against

Israel or the United States. It will be a real race to the courthouse

door.

And the states that wanted this changed provision in the definition of war crimes were exactly Israel’s political opponents. And

26

what will happen, and one of the reasons Israel was concerned

about it, and I think quite properly, is that it was just a setup way

for score settling, not a true search for justice in any meaningful

sense of the word, but a way to carry on military and political conflict through ostensibly legal means.

Mr. BEREUTER. Thank you. Mr. Secretary, do you wish to comment?

Mr. EAGLEBURGER. No.

Mr. BEREUTER. The gentleman from Massachusetts is recognized

for 5 minutes if he has further questions.

Mr. DELAHUNT. I won’t take my whole 5 minutes but thank you,

Mr. Chairman. I agree with you, Secretary Eagleburger, in terms

of the concern about the return of isolation. I think we are at the

point where the global economy is not going to allow it anyhow.

You keep referring to making international law. By that I presume

you are talking about procedural law because I don’t see—I mean

of course as decisions would come presuming that the Court ever

came into existence, it would establish a certain level of precedent

and stari decisis, if you will.

But what I see it more is establishing an infrastructure. I don’t

think that is making international law per se. At least I want to

be more clear in terms of where you are coming from on that.

Mr. EAGLEBURGER. You are correct, sir, in the sense that it is at

this stage procedural but let me try to make my point this way. I

understand, for example, that with regard to the mining treaty, for

example, that there are now people who including the lady here in

the United States whose name I can’t remember, who are arguing

that once that treaty was established even though the United

States did not sign it, it is now international law.

Now, OK, you can argue that that is stretching the point and

that she won’t make her point. My worry is that in fact she will

over time. If you take a look at what has happened, I think in

terms of thinking about war crimes and how we deal with issues

like the mining treaty, there is a growing tendency on the part of

those who are advocates of that kind of approach to argue that

once it is done then 5 countries agree with it or 15, it is now either

international law or close to it.

And if we go ahead with this criminal court, it seems to me that,

yes, it is procedural in what we are debating now but I think there

is a real worry that it becomes much more than that as it begins

to, I would say, build decisions which will lead to differences in

itself.

Mr. DELAHUNT. With due respect, I think that would happen

anyhow even in terms of the ad hoc tribunals that are in existence

now. What I suggest is that is going to happen whether the ICC

comes into existence or whether the ad hoc tribunals, whether they

deal with Rwanda or the Yugoslavian one. I think we are building

up a body of international law. But let me go to Mr. Bolton for a

minute.

You made reference to the European court on human rights and

some suit that appeared to be frivolous that was brought against

Britain. I mean in any system, any legal system of justice, I think

we are going to always have to anticipate frivolous assertions and

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27

tem. I guess what we are looking for is less than perfect, as much

imperfection as we can deal with.

I think that you, Mr. Bolton, point out the most legitimate concern, and that is the issue of prosecutorial accountability. But don’t

we have the capacity to design a system that deals with that particular issue, the concerns I think that you justifiably raise because

I am sure in your experience and in mine, we have both observed

prosecutors who abuse that awesome power, the power to deprive

individuals of their liberty.

But whether it be some sort of oversight mechanism, whether it

be length of term, whether it be the appointing authority, I mean

what I suggest is that, you know, within the wealth and the abundance of our experience there are ways to deal with the issue of

prosecutorial accountability.

Mr. BOLTON. That is entirely correct. In this country we call it

democracy. The legitimacy that prosecutors have flows from the

fact that they are ultimately politically accountable to elected officials. That is not the case for the prosecutor in this Court. He is

ultimately accountable first to the Court itself, which is a system

of allocating power that we have found unacceptable in this country since the framing of the Constitution, and, second, ultimately

to 140 or more states party to the agreement.

That is like saying the General Assembly of the United Nations

is responsible for the prosecutor. I don’t think anybody could argue

that is going to work.

Mr. DELAHUNT. OK. I mean, again, just to take that, I mean

whether it is the Security Council that has authority over the

Court at some point in time, unanimity, if you will, would be required.

Mr. BOLTON. But, Mr. Delahunt, I mean that is a very important

point. The original position of the Administration was that the

prosecutor of the ICC could only be triggered by a resolution, by

an affirmative decision of the Security Council, and that was rejected. Had that provision been in the treaty, I still wouldn’t support it but a lot of other people would have because——

Mr. DELAHUNT. All right.

Mr. BOLTON. Now could I just make one other real quick point?

Mr. DELAHUNT. Of course.

Mr. BOLTON. On the question of frivolous charges, the subject of

Kofi Annan’s remark is not frivolous. The man is the Secretary

General of the United Nations and whether you agree or disagree

with him when he speaks about the authority of the Council you

have to take it as seriously reflecting some people’s views. He

wasn’t the only U.N. official to speak about the legality of NATO’s

air campaign over Yugoslavia.

And I want to say I opposed that campaign as a matter of policy.

But the U.N. High Commissioner for Human Rights, Mary Robinson, said with respect to the NATO bombing that it was unacceptable that NATO ‘‘remains the sole judge of what is or is not acceptable to bomb.’’ And she went on to say ‘‘It surely must be right for

the Security Council of the United Nations to have a say in whether a prolonged bombing campaign in which the bomber choose their

targets at will is consistent with the principle of legality under the

28

charter of the United Nations.’’ She is a former president of Ireland

and she was saying those things so—— Mr. DELAHUNT. I take with great credibility any statements by

former presidents of Ireland.

Mr. BOLTON. I am sure you do.

Mr. DELAHUNT. I want you to know that, Mr. Bolton.

Mr. EAGLEBURGER. I wish she hadn’t made the point.

Mr. DELAHUNT. That is right.

Mr. BOLTON. But that is why the Belgrano litigation is not frivolous and I don’t think Mrs. Thatcher and her government take it

as frivolous.

Mr. DELAHUNT. I think Mrs. Thatcher has left the

government——

Mr. BOLTON. Former government.

Mr. BEREUTER. The time of the gentleman has expired. Let us

avoid Irish politics here, if we can. The gentleman from New Jersey, Mr. Payne. Do you have any further questions or comments?

Mr. PAYNE. Just a brief comment. I know the gentleman and I

agree with him on the statements from Irish former presidents.

The question though about the fact, and I hope too that isolation

won’t come about, and he said that because of global economy it

will. He feels that we don’t have to worry about that isolation business. You have to recall that it was in the 1930’s when there was

a big depression in Germany that Hitler decided he needed to do

something to divert attention so if we ever get back to a down turn,

you know, in economies then that makes it even more dangerous

as we stand alone and build this big wall around the United States

As a matter of fact, as you may recall, there has been legislation

put in the bill—you know, a fence in Texas to keep Mexicans out.

I mean just build a fence on the whole border. That way we won’t

have illegal immigrants. So we get to the point where sometimes

we really have to question it. That has nothing to do with this but

let me just ask this question and maybe it has been answered, Mr.

Bolton.

What situations in the recent past, you just mentioned the NATO

business, do you think that this International Court of Justice

would have prosecuted the President of the United States or some

high official?

Mr. BOLTON. Well, let me take the example of the NATO air

campaign over Yugoslavia, which was not approved by a resolution

of the Security Council and in fact I think the Administration correctly judged that if they had taken it to a vote in the Security

Council it might well have been vetoed by both Russia and China.

The question of both the general legality of the campaign and the

subject of the specific bombing targeting decisions and actions by

NATO were considered by the prosecutor for the Yugoslav tribunal

and in effect, although she declined to prosecute, she concluded

that she had jurisdiction at least over the operational aspects of the

matter.

And I think that is the kind of thing that we should have considerable pause on. If mistakes were made by NATO officials, by

American officials in the conduct of that air campaign, we have,

and quite properly so, mechanisms in the military justice system

in this country to deal with that and to allow our senior officials

29

to be exposed to second guessing after the fact and possible prosecution for that seems to me to be unacceptable.

Let me give you another example. There has recently been controversy over an engagement that took place at the end of the Persian Gulf War when General Barry McCaffrey and his forces destroyed an Iraqi tank and armored personnel column. And there

has been a lot of discussion about whether he acted in violation of

the cease-fire or not. I remember that from the last days of the war

where I saw the cable at the time about that engagement, but I

could easily see a prosecutor saying, well, I would like to look into

that and I think McCaffrey may be subject to indictment for having

violated the terms of the cease-fire and therefore having committed

a war crime under the Rome Statute.

McCaffrey, under the statute as presently drafted would be subject to the jurisdiction of the Court. Now I don’t think McCaffrey

did anything wrong at least based on what I know but what I do

know is that the United States has a fully functioning military justice system that can deal with it if he did.

Mr. PAYNE. Just finally the question about extradition. By us not

being a part of the worldwide system, for example, you may recall

that one of the perpetrators [genocidaires (ph)] in the Rwanda

genocide where, between 500,000 and 1,000,000 people were killed

and that was it was planned, and of course as you may recall no

one in the world wanted to act.

One of the genocidaires came to the United States and was in

Texas for a year, year and a half, but because of this ICC potential

and the fact that we did not feel that we could extradite him because it would set a precedent, you know, we could become the

haven, I guess, of people that want to slip into the country, we

were bound then to harbor a person like this who is responsible for

the deaths of thousands and thousands of people. He sat in Houston, TX, or somewhere and may still be there. How do we prevent

that kind of business from happening?

Mr. BOLTON. Well, I think the question of that particular extradition proceeding had to do with the question whether the applicable treaty provisions really governed an institution like the ad hoc

tribunal, but I think the purpose of the legislation, as I understand

it, by precluding agencies of the government at all levels, Federal,

state and local, from cooperating is to demonstrate the seriousness

of American opposition and I think that is a very important point

to make.

And we are not alone in having concerns about extradition, particularly of citizens of countries to something like the International

Criminal Court. One of the reasons for Latin American countries

in particular why ratification has been so slow in coming is that

those countries in many cases have constitutional provisions that

prohibit their citizens from being extradited for trial in another

country and they are facing now looking at the provisions for surrender to the International Criminal Court whether they actually

have to amend their constitution. So this is not a problem that is

peculiar to the United States.

Mr. BEREUTER. The time of the gentleman has expired. I have a

few concluding comments as I adjourn but before we do that, I

30

want to recognize the gentleman from California, Mr. Berman, for

the 5-minute rule, if he has any comments or questions.

Mr. BERMAN. Thank you, Mr. Chairman, and it is good to see

you, Mr. Secretary, Mr. Bolton, and I apologize for not being here

for your testimony and the earlier questions. Mr. Bolton, you just

said in response to a question by Mr. Payne under the statute

McCaffrey might be subject to prosecution for war crimes. What

statute?

Mr. BOLTON. The Rome Statute, the substantive provisions, not

retroactively. I am using that as an example prospectively of conduct during the course of warfare that would be subject to possible

oversight by the prosecutor.

Mr. BERMAN. And who passed this statute, this Rome Statute?

Mr. BOLTON. The Rome Statute was signed by over 100 countries

in Rome. It has been ratified so far only by 14.

Mr. BERMAN. And the United States did not sign?

Mr. BOLTON. That is correct.

Mr. BERMAN. And how many ratifications are needed before—— Mr. BOLTON. Sixty.

Mr. BERMAN. Sixty. Let us assume 60 parliaments around the

world ratify. Now we have an International Criminal Court to pursue into this statute. This bill goes beyond prohibiting the United

States from signing the treaty, as I understand it, or convention.

Is that——

Mr. BOLTON. It is called the Rome Statute. It is a treaty.

Mr. BERMAN. But it also seeks to prohibit our cooperation with

the International Criminal Court.

Mr. BOLTON. Right.

Mr. BERMAN. Let us assume it is ratified and Milosevic, for example, is apprehended and brought to trial for different kinds of

war crimes and the United States has evidence that would be useful in that prosecution. Why would we beforehand want to say that

no matter what the situation, no matter what the circumstances,

no matter whom we are talking about, if this is the place where

he is being brought to justice, we are not going to assist in the

prosecution of him?

Mr. BOLTON. Well, I think there are three reasons for that. The

first deals with the question whether or not the evidence is classified or not. Now let us assume for purposes of this discussion that

it is unclassified. The reason not to cooperate even in the case of

Milosevic is to demonstrate beyond any question to any other state

party to the treaty that we do not accept the legitimacy of the

Court.

We don’t accept legitimacy for all the reasons we have been discussing here for the past couple of hours which I won’t repeat but

that is to emphasize and underline the strength of the United

States view. That is point one. Point two, if we have evidence,

other people might have evidence as well. It is not like it is, at

least on an unclassified basis, that we are saying the Court can’t

get any evidence at all.

We are simply saying for our perspective we are unilaterally not

cooperating with the Court, but I think the more difficult circumstance—and the proposed legislation also covers this—which

really would trouble me is where we had classified information.

31

And I don’t have any trouble at all in that circumstance saying, ‘‘Of

course we are not going to turn over classified information to a

Court like that; that could compromise sources and methods that

we couldn’t permit to be used in the prosecution of Milosevic without compromising our own intelligence efforts.’’ Just as you are very familiar with, I am sure, in this country

where we have evidence against terrorist activity in this country

that is obtained that we can’t use in a prosecution in Court.

Mr. BERMAN. No one is talking about a statute that compels cooperation with this International Criminal Court.

Mr. BOLTON. No, but it is to prevent the cooperation from an Administration that has demonstrated by its every action that it

wants to do exactly what would be prohibited by this legislation.

Mr. BERMAN. I think that is quite a statement. You are saying

that this Administration apparently would want to compromise

sources and methods——

Mr. BOLTON. No, no, no. Come on, Congressman Berman.

Mr. BERMAN. That is what you said.

Mr. BOLTON. What I said was that the Administration has demonstrated repeatedly it would love to sign the Rome Statute if it

could figure out how to do it and it wants to cooperate——

Mr. BERMAN. I don’t understand what you mean. Do you

mean—— Mr. BOLTON. It is testified publicly that it would seek to cooperate with the Court in every occasion that was possible and I think

that is one of the reasons it has given rise—— Mr. BERMAN. Well, if it would love to sign the Rome Statute, why

doesn’t it?

Mr. BOLTON. Because it recognizes, No. 1, there is opposition in

the Pentagon, and, No. 2, it would be dead on arrival in the Senate.

Mr. BERMAN. As opposed to the Comprehensive Test Ban Treaty

or any of the other treaties that have not been ratified by the Senate?

Mr. BOLTON. I am not aware of a single Senator who has endorsed the Rome Statute as currently written. Perhaps you are.

Mr. BERMAN. I would like to know of—I am not saying we should

sign the Rome Statute. I would like to understand why we should

have a provision that prohibits any Administration, not just this

Administration, any Court—you can talk about a deposition at a

trial where you need the original transcript of that deposition to

impeach a witness there and, as I understand it, this prohibits any

state or local government and presumably any branch of any state

or local government or Federal court from providing upon request

certified copies of transcripts of testimony given in a Court to the

Criminal Court for the purposes of aiding in the prosecution of

someone that there is a consensus we feel has engaged in war

crimes activity.

It seems like in order to limit your fears about what might happen, you are tying the hands in allowing things that could happen

in a form that we would prefer didn’t exist but does exist. It has

legitimacy in that a certain number of nations have signed it and

have given it that legitimacy. We don’t have to accept it or make

our folks subject to it or participate in it to say that, you know,

under the principle that even a stopped clock is right twice a day.

32

There may be some situations where we want the flexibility to let

the only possible way in which somebody could be brought to the

bar of justice for that to be a successful operation. It just seems

like an overage here.

Mr. BEREUTER. The time of the gentleman has expired.

Mr. SMITH. Mr. Chairman.

Mr. BEREUTER. The question has been asked several times and

it may well be a question that the legislative body will have to address when we take up this matter.

Mr. SMITH. Mr. Chairman.

Mr. BEREUTER. Yes. I did say I would conclude the hearing, but

I do recognize the gentleman from New Jersey.

Mr. SMITH. Thank you very much, Mr. Chairman. Two bills that

were on the floor, one Veterans and one dealing with the issue of

capital punishment precluded my being here so I missed what I am

sure was very eloquent testimony from two good friends, Secretary

Eagleburger and Secretary John Bolton. Let me just ask unanimous consent that my full statement be made a part of the record,

Mr. Chairman, and just make a couple of observations.

I was at the and led the delegation, was head of the delegation

at the OSCE parliamentary assembly in Bucharest just a couple of

weeks ago and there was an issue dealing with the International

Criminal Court and there was a resolution to try to get states to

ratify it, to accelerate ratification. Our delegation took the view of

either abstaining or voting against it. I spoke very vigorously

against the resolution and did so not because I am not for international criminal tribunals.

As a matter of fact, our Subcommittee on International Operations and Human Rights took a back seat to no one nor did the

Helsinki Commission when we were talking about the creation of

the Balkans war crimes tribunal. As a matter of fact, I offered

amendments to increase the amount of money donation from the

U.S. Government to try to accelerate that very specific war crimes

tribunal and did likewise for the tribunal dealing with Rwanda and

the genocide that took place there.

The problem with the Rome treaty, as I see it, is a lack of definition. The fact that the article 5, the crime of aggression, isn’t even

defined yet and yet it is included and countries are being asked to

ratify and the fact that there is immense elasticity with definitions

in other areas means that this is ripe for political manipulation.

The fact that the prosecutor’s office can accept the work of NGO’s,

and again I take a back seat like the Chairman and like others,

NGO’s play a very fine role.

But the independence of a prosecutor should be just that. He or

she should have the ability and the capability in terms of assets

to very vigorously go after a real bona fide war crime. But again

we are dealing with language that is very, very imprecise and I

think that we need to look at this very carefully. Finally, Mr.

Chairman, I am concerned about the impact this might have on

peace keeping and peace making.

I think any Commander-in-Chief would be loathe to send our

men and women into harm’s way believing that there could be a

very frivolous but very mischief-making assertion of war crimes

being asserted against our men and women if they take out a TV

33

tower, for example, and that is construed not to be a military assess even though it is putting out propaganda and calling people

to a war-like footing in that country as did Milosevic, and yet some

people might say, oh, that should be off limits.

This is a very, very problematic area. We need to go slow and

where there are war crimes, like I said, there needs to be at least

ad hoc tribunals convened, but there is some very real reason for

pause with regards to this. And again I would ask that my full

statement be made part of the record and thank our good friends

for being here today.

Mr. BEREUTER. Without objection, that will be the case. I thank

the gentleman for his excellent statement. I am in agreement with

what he said. As we conclude these hearings, I want to thank first

of all the witnesses for the time that they spent with us and for

the way they have addressed our questions. I am very concerned

about the statement made by the Secretary General that is a quote

in your statement, Mr. Bolton.

I have known this gentleman for a long time before he was Secretary General. I have great respect for him. But I think there is

something that is happening gradually and it is very insidious with

respect to our sovereignty. We have heard such a great amount of

warped rhetoric about loss of sovereignty that sometimes we may

not recognize it when it is happening. And I would say that there

is no way that the United States should accept the legitimacy of

the ICC if it is established.

Since I spend a lot of time with European institutions, I have

found over the last few years that what has happened with European nations that are members of the European Union, for example, is that they have gradually given parts of their sovereignty to

the commission, and it has become the accepted norm. We have

seen, as one of you pointed out, with respect to Yugoslavia how action probably could not have been taken with a U.N. resolution in

the case of intervening in Kosovo.

Now I, too, disagree with what happened there as a matter of

policy, but I do believe that we would find ourselves in a stalemate.

Increasingly, in the NATO Parliamentary Assembly, we have votes

now which makes it clear that the Europeans by and large today—

NATO members of Europe and EU members—think of the United

Nations as a super-national body to which should be given or in

some cases assenting to the gift of elements of our sovereignty.

That is something that is very serious.

Mr. Lantos raised questions as to whether or not this legislation

which is in part the subject of this hearing, certainly prompted it,

is offered for partisan reasons or for partially partisan reasons.

That is a legitimate question to be asked. But we had a number

of questions also raised as to whether or not we should attempt to

amend the legislation to address it so that proper consultation and

assistance might be offered and whether or not if we refine relief

so that non-signatory citizens would not be subject to the jurisdiction of the international court this would be acceptable.

On the other hand, we have presented to you the suggestion that

this is a way of saying that the United States is so much and so

fundamentally opposed to the ICC that this would be a way of demonstrating on the part of Congress that the Administration has no

34

further mandate if they had one at all from the Congress to proceed with attempting to fix the problems that we see within the

ICC.

Gentlemen, you have been helpful to us in sorting through some

of these issues. We are prepared to hold a hearing on this same

subject when we hear from the Administration tomorrow, and we

are looking forward to that as well. And in closing I ask unanimous

consent to include in the record statements submitted on behalf of

the American Bar Association and the Lawyers Committee for

Human Rights. The Committee is adjourned.

[The aboved-mentioned statements appear in the appendix.]

[Whereupon, at 12:13 p.m., the Committee was adjourned.]

(35)

THE INTERNATIONAL CRIMINAL COURT:

PART 2—RECENT DEVELOPMENTS

WEDNESDAY, JULY 26, 2000

HOUSE OF REPRESENTATIVES, COMMITTEE ON INTERNATIONAL RELATIONS, Washington, DC.

The Committee met, pursuant to notice, at 10:30 a.m., in room

2172, Rayburn House Office Building, Hon. Doug Bereuter presiding.

Mr. BEREUTER. The Committee will be in order.

Today we hold the second of two hearings on the International

Criminal Court. Yesterday we heard from two very distinguished

former executive branch officials, former Secretary of State Lawrence Eagleburger and the former Assistant Secretary of State for

International Organizations John Bolton. They both testified about

the very serious dangers to our national interest arising from the

International Criminal Court in their judgment, and they urged

Congress to begin to remedy this situation by approving H.R. 4654,

the American Servicemembers’ Protection Act of 2000.

As I noted at the outset of yesterday’s hearing, there are many

strongly held opinions about the International Criminal Court and

many passionate disagreements.

The one thing that virtually everyone agrees on, however, is that

the way this issue has evolved over the last few years has been

nothing short of disastrous from the point of view of the national

interest of the United States.

Today we are well on the way, it appears, to the establishment

of a U.N.-led criminal court, which will claim the jurisdiction to

prosecute and imprison American servicemembers and other officials of our Government in certain instances, irrespective of whether the United States every becomes a party to the Court.

I know from the prepared testimony of today’s witnesses that

they intend to devote themselves to criticizing legislation that is

before the Committee, the American Servicemembers’ Protection

Act, and we want your criticism of legislation and your own view.

Clearly the Administration is not supportive of the legislation,

but we should all reflect for a moment on why the legislation was

introduced, as I understand it.

To my mind, the legislation is about accountability. It was introduced because there has been a failure in the conduct of our nation’s diplomacy with respect to the International Criminal Court.

The Administration set in motion a process that led to the Rome

Treaty. It seems to me that it lost control of the process while dealing with European Union members in particular those with a very

36

different attitude about international organizations than does the

United States and its citizens.

A treaty emerged that is prejudicial to our national interest, so

prejudicial, in fact, that the Administration decided it could not

sign the treaty; I commend them for that judgment.

Since that time, the Administration has devoted itself to trying

to deal with the problem that presents itself to us. Apparently, the

Administration is no longer trying to bring the United States into

membership of the Court. Rather it now seems to be focused on trying to make it safe for the United States to remain outside the

Court.

Secretary Eagleburger and Secretary Bolton yesterday predicted

that the Administration is unlikely to succeed in its efforts to win

back what it lost in negotiations in Rome. I hope their judgment

is incorrect, but that is commonly thought to be the case. They further argued that even if the Administration gets the technical fixes

it is seeking, no American servicemember or Government official

can have real confidence that he or she is safe from ICC prosecution, so I hope our witnesses today will not focus exclusively on the

legislation and their criticism of it, although we want that. I hope

you also tell us how our nation can avoid these kind of problems

in the future, because I happen to think, in light of my contact

with the legislators and government officials of the European

Union nations, for example, that this is the beginning of a longterm problem for the United States.

They are willing to give up elements of their sovereignty, it is

quite clear, and we are not, and should not be.

Before recognizing our panel, I want to first recognize the Ranking Democratic Member, Mr. Gejdenson, for opening comments he

may have, and then I will introduce our witnesses. Mr. Gejdenson.

Mr. GEJDENSON. Thank you, Mr. Chairman.

I am not sure whether the impetus for this legislation was the

crowd that constantly worries about black helicopters and blue helmets taking over the country or simply a partisan attempt to gain

advantage for the November elections, but it really just stuns me,

and I was frankly disappointed by my old friend Secretary

Eagleburger’s responses yesterday.

If you read the legislation, it says the United States should not

help prosecute a known war criminal, it should not help defend an

American who is being prosecuted. It creates an America attempting to isolate itself without even having a conversation about where

the Court is going.

I think there is no doubt here that we have grave reservations

about the formation of the Court, its operation. But to argue that

an Administration ought to be precluded from trying to improve an

institution that is being created, a Court that is being created

internationally is absolutely stunning to me.

I think we all agree that at the end of the day it is highly unlikely that the Administration or the Congress would be supportive

of this Court, but to argue that the Administration should not try

to improve an institution that will be created, to make sure that

America’s interests aren’t heard is particularly troubling to me—to

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versations with its closest allies in Europe and just simply walk

away and not have any conversations is unacceptable to me.

I want to ask the witnesses to address their concerns about the

Court, because I think that is important, but also to argue and articulate why it is important for the Administration to continue discussions with our European friends and partners. I particularly

want to welcome Under Secretary Slocombe and hope that he can

make a statement at the end of Ambassador’s Scheffer’s remarks

so we can get the Defense Department’s views on record.

All of us understand the difference between Liechtenstein and

the United States as far as our exposure and our responsibilities

worldwide, but I do not think we want the future of the world left

to ad hoc courts and kidnappings as the only way to deal with

international terrorists and criminals. If Brazil decided tomorrow

that it had authority to go into every Latin American country and

just grab whoever they wanted, the United States and I think most

of the world would be offended. This Court may have the wrong

definition, the wrong process, the wrong players, everything about

it might be wrong, but we still ought to be in that discussion.

Mr. BEREUTER. I thank you, Mr. Gejdenson.

It is my pleasure now to call on the gentleman from New Jersey,

who is the Chairman of the Subcommittee responsible for oversight

of Americans’ involvement in international organizations, the gentleman from New Jersey, Mr. Smith.

Mr. SMITH. Thank you very much, Mr. Chairman.

Mr. Chairman, the concept of a permanent International Criminal Court charged with prosecuting the gravest of crimes against

humanity is not a new one. The idea was proposed and dismissed

after the conclusion of the Nuremberg and Tokyo War Crime Tribunals that followed World War II.

In recent years the idea has gained new momentum, driven

largely by memories of the horrific crimes committed in Rwanda

and the former Yugoslavia. I share the ideals of many ICC supporters. If we could construct an entity that would impartially prosecute only genocidal tyrants and war criminals I would support it

without hesitation, but we do not inhabit an ideal world. The difficulty is in devising a system that will prosecute Pol Pot but not

President Clinton, that will indict Ratko Mladic but not Norman

Schwartzkopf.

I am concerned that the Rome Statute of the International

Criminal Court fails to accomplish that goal and that it is susceptible to serious abuse and manipulation.

As it took form, the draft statute ballooned from an instrument

focused on well-established war crimes into an encyclopedia of stillemerging human rights law. The resulting statute is a 30,000 word

document that covers 77 pages. It contains sweeping language that

leaves many elements of vaguely defined crimes up to the imagination of international lawyers.

For example, according to article VI the crime of genocide includes, ‘‘causing serious mental harm’’ to members of a, ‘‘national,

ethnic, racial or religious group.’’

It is true that similar language is contained in the Convention

against Genocide, but the United States took a reservation to the

jurisdiction of the World Court over the definition of genocide. This

38

is not because we intend to commit genocide, but because the

United States was unwilling to surrender its sovereignty to a body

that might be manipulated by hostile parties using the vague language of the convention as an ideological hobbyhorse.

Similarly, article V asserts ICC jurisdiction over the, ‘‘crime of

aggression’’—an offense that is not defined in international law or

even in the Rome Statute itself, a point that I made repeatedly at

the OSCE parliamentary assembly in Bucharest earlier this month.

In the context of domestic law, such vagueness would be problematic. In the more combative context of international law it is dangerous.

In addition to the problems posed by its vague definitions, the

statute also claims a jurisdictional reach that is without precedent.

Once 60 countries have ratified it, the statute claims ICC jurisdiction over any defendant who may have committed a crime in a signatory state regardless of whether the defendant’s own state had

ratified the treaty. By claiming to bind the subjects of non-signatory states, this self-executing, potentially universal jurisdiction directly challenges traditional concepts of national sovereignty.

Finally, the Rome Statute gives the ICC prosecutor a vast

amount of personal power with a minimum amount of oversight.

The statute drafters rejected a U.S. proposal that the prosecutor

only be allowed to proceed on cases referred either by a sovereign

state or by the U.N. Security Council. Instead, the ICC prosecutor

may initiate investigations and prosecutions on his own authority

without control or oversight by any national or international party.

Under article 44, the prosecutor may also accept any offer of, ‘‘gratis personnel offered by nongovernmental organizations to assist with the work of any of the organs of the Court.’’ I have long been a supporter of the important work undertaken

by International NGO’s, particularly relating to the protection of

human rights and the provision of humanitarian relief, but it is

also true that there exist hundreds of highly ideological NGO’s who

look to international bodies to promote agendas that go far beyond

the domestic political consensus in their home countries. The combination of the independent prosecutor’s extreme discretion with

staff provided by well-funded extremist NGO’s could lead to serious

problems and partisanship by the ICC. These are but a few of the

problems that I have with the present form of the Rome Statute.

I readily acknowledge that many, probably most, ICC supporters

do not intend for the Court to be used as a club for U.S.-bashing

or as an engine or radical social engineering, but once the ICC is

established it will take on a life of its own. Its activities will be restricted by the language of the Rome Statute itself rather than by

the best intentions of its most responsible supporters, and I just

would say finally, Mr. Chairman, as you know, I take a back seat

to no one in promoting—in the past and present—both the Rwanda

War Crimes Tribunal and the International War Crimes Tribunal

for the Balkans.

When we were holding early hearings in our subcommittee as

well as on the Helsinki Commission I offered language and amendments to boost the U.S. donation to those important tribunals and

so I take a back seat to no one, but this I think has some very real

problems that need to be addressed. I yield back.

39

Mr. BEREUTER. Thank you very much, Mr. Smith.

Now our first witness today is Ambassador David Scheffer, the

Ambassador-at-Large for War Crimes Issues at the Department of

State.

He has held that office since 1997. He previously served as Senior Advisor and Counsel to our then-Ambassador to the United Nations, Madeline Albright.

Before working in the Clinton Administration, Ambassador

Scheffer held a variety of positions including Adjunct Professor of

Law at Georgetown University and Columbia University, Senior

Associate at the Carnegie Endowment for International Peace, and

a stint as a consultant to an organization called the House Committee on Foreign Affairs.

Ambassador Scheffer is joined by the Honorable Walter

Slocombe, the Under Secretary of Defense for Policy. Secretary

Slocombe has held this position since 1994. Before joining the Administration, he was partner in the D.C. law firm of Kaplan &

Drysdale and also held positions in the Department of Defense during the Carter Administration and is a frequent witness before this

Committee and our subcommittees.

Gentlemen, we welcome you. Ambassador Scheffer, we have your

prepared statement, so we welcome a summary of your testimony.

Your entire statement will be made a part of the record and you

may proceed as you wish.

STATEMENT OF THE HONORABLE DAVID SCHEFFER, AMBASSADOR-AT-LARGE FOR WAR CRIMES ISSUES, U.S. DEPARTMENT OF STATE

Ambassador SCHEFFER. Thank you very much, Mr. Chairman,

and thank you also, Congressman Smith, and to the ranking Member Congressman Gejdenson.

I will in fact shorten my statement considerably and look forward

to the full statement being filed in the record.

I appreciate the opportunity to testify this afternoon on H.R.

4654, the American Servicemembers’ Protection Act of 2000. We all

share the same minimum objective, namely to ensure that members of the U.S. Armed Forces and U.S. Government officials are

not prosecuted before the International Criminal Court when it is

established.

However, as the Chief Negotiator for the United States on the

ICC Treaty of July 17, 1998, and its supplemental agreements still

being negotiated at the ICC Prep. Comm., I believe that this legislation will cripple our ability to achieve our common objective. This

legislation will not change a single word of the ICC Treaty of any

of its supplemental documents. Indeed, H.R. 4654 will worsen our

negotiating position at the very moment when we stand the best

chance of securing agreement with other governments to protect

our soldiers and Government officials and to continue our support

for international justice.

The Administration opposes this legislation. H.R. 4654 infringes

on the President’s Constitutional authority as Commander-in-Chief

and to conduct foreign relations. It is counter-productive not only

because of its direct impact on critical negotiations relating to the

ICC, but also because H.R. 4654 would seriously damage U.S. naVerDate 11-MAY-2000 17:09 Jan 16, 2001 Jkt 000000 PO 00000 Frm 00043 Fmt 6601 Sfmt 6601 68483.TXT HINTREL1 PsN: HINTREL1
40

tional policy objectives. It would hold national security and foreign

policy interests hostage to the fate of our relationship with Governments that support the ICC and to the willingness of other members of the Security Council to immunize our Armed Forces personnel from ICC jurisdiction.

As the Department has explained in letters to Chairman Gilman

and Representative Gejdenson dated June 30, 2000, current law

prohibits the use of Federal funds to support the International

Criminal Court, but this bill is more sweeping and harmful to particular Defense and foreign affairs programs. It would prohibit

military aid to any country that has ratified the ICC treaty with

exceptions only for NATO and major non-NATO allies.

Moreover, by requiring that the U.N. Security Council grant immunity to U.S. personnel to participate in U.N.-authorized military

activity, the legislation could effectively prevent U.S. military engagement on issues of critical national security concern.

The bill would have these detrimental consequences without providing the Administration with any new authority or any increased

ability to protect U.S. servicemembers from prosecution. Rather, it

would tie the hands of the President as Commander-in-Chief, and

risk harming important U.S. interests by its inflexibility.

The Administration is actively pursuing the international protection objectives that are critical to the executive branch as well as

to many Members of Congress. In particular, at the ICC Prep.

Comm. meetings in New York where supplementary treaty documents are being considered, we are proposing a measure that in

general terms would ensure that servicemembers and civilian officials of countries such as the United States that have not ratified

the Treaty are not brought before the Court without the consent of

their governments.

We have made clear that without a favorable result the United

States would be compelled to reconsider U.S. military participation

in certain contingencies.

The latest round of ICC meetings ended on June 30. We made

important progress at those meetings, but we have a very tough

struggle ahead as we advance toward the next session in late November. We are deeply concerned that in addition to imposing unnecessary and dangerous restrictions on national security decisionmaking the legislation prejudges the outcome of ongoing negotiations on the protection objectives we are seeking to achieve.

For this reason it would undermine the efforts of the U.S. negotiators and diminish the likelihood of obtaining those additional

protections for U.S. servicemembers.

Before I comment on particular provisions of the bill I want to

emphasize that the ICC Treaty is designed to bring to justice those

most responsible for the most serious crimes of concern to the

international community, namely genocide, crimes against humanity, and war crimes. Since 1993, we have been deeply engaged in

every phase of the ICC treaty. We have supported the creation of

an effective and appropriate International Criminal Court because

there is a clear need for one in the wake of continued atrocities.

Nonetheless, a fundamental flaw remains in the ICC Treaty regarding the Court’s purported ability to prosecute under certain

circumstances the nationals of nonparty states, even those acting

41

officially for responsible nations like the United States. Therefore,

the possibility of our own exposure under the ICC Treaty remains,

and that is why we are seeking further protection in the ICC talks.

In my prepared remarks there is considerable attention paid to

the Department of Justice’s advice regarding the Constitutional infirmities of this legislation. I will not repeat those points in my oral

remarks but I strongly recommend them to you for your attention.

I also believe that the paper submitted by Monroe Lee on behalf

of the American Bar Association, which also discusses the Constitutional issues relating to this legislation, is extremely good reading,

and I commend it to the Committee.

Section IV of H.R. 4654 would prohibit specific forms of cooperation with the Court until the United States ratifies the ICC Treaty.

The President already has that authority, but we anticipate there

will be instances in which it will be the national interest to respond

to requests for cooperation even if the United States is not a party

to the ICC Treaty. We may decide that an international investigation and prosecution of a Pol Pot or Saddam Hussein and Idi Amin,

a Foday Sankoh or some other rogue leader who has committed or

is committing heinous crimes that no civilized government or people could possibly condone or acquiesce in would be in the national

interest of the United States to support.

In the ICC negotiations the U.S. Government has pressed other

governments hard to accommodate our need to protect U.S. personnel from being surrendered to the ICC to stand trial while the

United States is not a party to the Treaty. I must be able to offer

in exchange for the protection that we are seeking the ultimate cooperation of the United States with the ICC when it serves our national interests while our country is a nonparty to the ICC Treaty.

Section V can severely impede national interests and needlessly

hold them hostage to the ICC Treaty. Under the Constitution the

President already has the authority to do all that is required in

Section V of the bill but Section V ignores the President’s responsibility to national security considerations in deciding when and how

to deploy U.S. military personnel under a wide and often unpredictable range of contingencies. The bill ties the President’s hands in

a way that can severely undermine this nation’s ability and will to

protect our national interests.

Section VI is unnecessary. As we have already ensured in articles 72 and 73 of the ICC Treaty that we will have complete control

as a nonparty or as a party to the ICC Treaty over the transfer of

classified national security information to the ICC.

Under Section VII of H.R. 4654 U.S. military assistance globally

would be held hostage to the ICC Treaty regardless of U.S. national interests, regardless of whether our servicemembers are protected through some means other than an article 98 agreement and

regardless of what circumstances will arise in the future. This provision can only undermine our national interests. The President already has this authority if he chooses to use it to advance national

security objectives. The legislation requires the use of that authority in a way that is most likely to undermine relevant national policies.

Section VIII would authorize the President to use all means necessary and appropriate to free U.S. personnel being detained or imVerDate 11-MAY-2000 17:09 Jan 16, 2001 Jkt 000000 PO 00000 Frm 00045 Fmt 6601 Sfmt 6601 68483.TXT HINTREL1 PsN: HINTREL1
42

prisoned by or on behalf of the ICC. We would note that the ICC

will be located in The Hague, the Netherlands, so in a curious way

Section VIII contemplates an armed attack on the Netherlands, a

close NATO ally of the United States. It is, to put it bluntly, an

alarmist provision that only complicates our ability to negotiate our

common objective of protection from prosecution.

Under the Constitution the President already has the authority

to protect U.S. personnel wherever they are located in the world.

Section IX of the H.R. 4654 requires a report evaluating the degree to which each existing status of forces agreement or other

similar international agreement protects U.S. personnel from extradition to the ICC under article 98 of the ICC Treaty. Although we

could provide such an assessment, the major issue lies in reopening

SOFAS to negotiation in order to seek full protection from extradition through a SOFA provision.

Section IX requires the President to transmit to Congress a plan

for amending existing SOFAs or negotiating new international

agreements in order to achieve the maximum protection available

under article 98. Reopening SOFAs could encourage host countries

to insist on renegotiating other existing provisions.

Section X requires a report with respect to military alliances to

which the United States is a party. This provision needlessly subjects our alliance command arrangements to factors pertaining to

the ICC Treaty and thus suggests that once again our national security interests will be held hostage to the ICC Treaty.

In conclusion, many of the provisions of H.R. 4654 achieve exactly the opposite of the result intended and would seriously harm

our own national security and foreign policy interests. The legislation would cripple our negotiating leverage to achieve the common

objective of protection of American servicemembers from surrender

to the ICC. Section V could make it impossible for the United

States to engage in critical multinational operations. Section VII

could weaken essential military alliances.

The bill raises fundamental Constitutional issues and would seriously impair any future Administration’s ability to pursue national

security objectives.

As a negotiator who has faithfully worked and will continue to

work to protect U.S. national interests and U.S. servicemembers in

the ICC Treaty regime, I respectfully ask you to withdraw this legislation so that I have a fighting chance to achieve additional protections for U.S. servicemembers.

Thank you, Mr. Chairman and Congressman Smith.

[The prepared statement of Ambassador Scheffer appears in the

appendix.]

Mr. BEREUTER. Thank you, Ambassador Scheffer. Do you have

any kind of statement or remarks that you would like to offer at

this point? If not, the Under Secretary is recognized.

43

STATEMENT OF THE HONORABLE WALTER SLOCOMBE,

UNDER SECRETARY OF DEFENSE FOR POLICY, U.S. DEPARTMENT OF DEFENSE

Mr. SLOCOMBE. Thank you, Mr. Chairman.

First of all, I associate myself with and the Department of Defense with the detailed points made by Ambassador Scheffer in his

statement.

Let me say a few words, first of all, about why the Department

of Defense and the Administration are opposed to the United

States being a party to the Rome Statute, and, indeed, opposed to

particular provisions of the Rome Statute, the issues which Congressman Smith addressed in his statement, in particular.

And then I will explain why, in spite of that position, we are concerned about this bill and oppose it in its present form.

The Department of Defense is committed to the vigorous prosecution of violations of human rights law and of the Law of War. We

have, indeed, prosecuted American Servicemen where there have

been credible allegations of such violations on their part.

We have supported the international criminal tribunals for

Rwanda and for Yugoslavia, and we regard the establishment of a

body of international law relating to crimes against humanity,

genocide and so on, as valuable and important. Indeed, we place a

high priority in conducting our own military operations on compliance with the relevant provisions of the Law of War. I commend

to the Committee’s attention the very important opinion issued by

the Prosecutor for the ICTY, rejecting all of the allegations against

NATO activity in Kosovo.

So it is not a question of fidelity to international law or recognizing its importance. Indeed, the United States supported—would

have supported—the establishment of an appropriate international

criminal court. However, we have a fundamental problem with the

treaty as it emerged from the Rome meetings, because of its inadequate jurisdictional safeguards, particularly as applied to nationals of states that have not ratified the treaty.

As it currently stands, the Rome Treaty could expose

servicemembers and government officials of non-party states to

criminal liability. This possibility is particularly serious in the case

of the United States, because we believe there is a real potential

for groundless, politically motivated charges to be brought by other

states that object to the international policies of any non-party

states, but specifically the United States.

That exposure would inhibit responsible international military

efforts in support of humanitarian and peacekeeping objectives.

However, the fact is that this treaty is likely to come into effect

when 60 states ratify it. For that reason we attach very high importance to making an attempt, which is now in progress, to ensure

that nationals of non-party states acting pursuant to official instructions, acting on behalf of their countries, cannot be prosecuted.

If those efforts fail, we will have to take a hard look at our overall approach to the Court. A negative result could have a major impact on our decisions about whether to participate in certain types

of military contingencies.

44

We would be facing the significant risk that the United States

would be unable to support the ICC or recognize its legitimacy,

particularly over personnel engaged in military operations.

So just as there is, I think, no question that the Department of

Defense recognizes international law and the requirements that

that imposes on our operations, there is no question that the Administration, very largely for the reasons that Congressman Smith

has identified, regards the treaty in its present form as unsatisfactory.

All that said, the Department of Defense joins in the opposition

to this bill for two basic reasons.

First, and perhaps of the greatest immediate importance, Ambassador Scheffer, leading an interagency delegation, is now engaged

in very difficult negotiations to secure protection for U.S. military

personnel in the situation which is going to exist anyway, that is,

that the treaty comes into effect with the United States as a nonparty.

We believe that the legislation will interfere with those efforts to

fix the problem.

Second, there are serious objections to details in the legislation

which have been broadly outlined by Ambassador Scheffer, quite

apart from its immediate impact on the on-going negotiations.

The bill does not give the President any power he doesn’t already

have.

It seriously limits U.S. flexibility, for example, by cutting off aid

to a large number of countries in the world with whom we have,

for very good reasons, with the support of the Congress, substantial

military-to-military links.

It would complicate the already sufficiently complicated problem

of keeping our Status of Forces Agreements [SOFAs] in a form

which will protect American military personnel overseas from a

whole set of other problems.

It would block U.S. cooperation, even in cases of prosecutions

which we strongly supported, and in a sense, it is legislative overkill.

This issue—of the ICC—is an important one, but it is not the

only concern we have, and by imposing a set of rigid rules, we’d

make it far more difficult, I believe, both to carry out our objectives

with respect to the Rome Statute, but also with respect to carrying

out our national security policies in the future.

I thank the Committee for your attention, and I look forward to

answering questions.

Mr. BEREUTER. Thank you very much, Secretary Slocombe. The

House has a series of two votes that occur in 15 minutes, which

is only 5 minutes away, and then a 5-minute vote, so we will recess

the Committee until approximately 10:50 a.m.

Thank you very much.

[Recess.]

Mr. BEREUTER [presiding]. The Committee will be in order. We’ll

now proceed under the 5-minute rules for the questioning of our

witnesses.

Ambassador Scheffer, could you clarify for me and for the Committee, the policy of the Administration regarding the Rome Treaty

and the creation of the ICC?

45

Are you trying, in effect, to fix the Rome Statute so that eventually the United States can sign it, can ratify the treaty to create

the ICC? Or, are you trying to fix it so that our nation can remain

a permanent non-party to the treaty without fear that our

servicemembers and other government officials will become targets

for prosecution by the ICC?

Ambassador SCHEFFER. Thank you, Mr. Chairman. It’s actually

neither, but it’s mostly the latter that you have just described.

In other words, we are not in a posture at this point of trying

to, shall we say, fix the treaty in contemplation of signing and ratifying it; rather, we are seeking to fix what I very accurately describe as the treaty regime, because it simply is not plausible at

this stage to consider actually amending the text of the treaty.

The first opportunity to amend the text of the treaty only arises

7 years after the treaty enters into force with 60 ratifications.

So in our own interest, that’s not exactly where we should be directing our energies at this point; but, rather, we are looking at the

supplemental documents that are associated with this treaty to determine how we might best protect our most important interests in

those documents.

And, of course, our most important fundamental interest is the

protection of U.S. personnel from surrender to this Court while we

are a non-party. That is our objective.

It is not tied to any plan for signature, and certainly none for

ratification.

The only reason I said it’s not quite the latter point that you described is that you said for our permanent non-party status under

the treaty.

I don’t want to prejudge that for future Administrations whatsoever. All we want to do at this time is to get this squared away

so that the United States can be comfortable with this treaty and

be able to facilitate its objectives when it is in our national interest

to do so.

Mr. BEREUTER. So, Ambassador, you’re saying that the word that

I used, ‘‘permanent,’’ makes it not an accurate description. So, in

fact, you’re trying to assure that as a non-party to the treaty, our

personnel, military and otherwise will not be subject to prosecution

in the ICC? Is that correct?

Ambassador SCHEFFER. Precisely.

Mr. BEREUTER. And if, in fact, there are no opportunities to

amend the treaty until approximately 7 years, I think you said——

Ambassador SCHEFFER. Yes.

Mr. BEREUTER. And at that time, it would only be members of

the ICC, those that have signed the treaty, ratified it, that would

have an opportunity to amend it?

Ambassador SCHEFFER. That’s correct.

Mr. BEREUTER. In fact, as a non-party, we would not be part of

those discussions for amendment?

Ambassador SCHEFFER. Yes.

Mr. BEREUTER. Ambassador Scheffer, could you explain to me,

how people came together to draft the Rome Statute? I want to understand the legitimacy of the people that gathered to make decisions like that.

46

Ambassador SCHEFFER. It began in 1989 with a proposal by Trinidad and Tobago to create a permanent court for drug trafficking

prosecutions. But it grew from that in the International Law Commission of the United Nations to focus instead on a permanent

court that would prosecute genocide, war crimes, and crimes

against humanity.

And in the early 1990’s, up through 1994, the International Law

Commission prepared a draft statute for such a permanent court.

That was then sent to the General Assembly of the United Nations,

and the General Assembly decided in late 1994 to create a committee of the whole body of the United Nations to examine the statute prepared by the International Law Commission.

Those meetings began in early 1995, and they continued through

to the Rome Conference of July 1998.

Mr. BEREUTER. And who were participants in that?

Ambassador SCHEFFER. The participants were representatives of,

I would say, a majority of the governments which are member

states of the United Nations. Each session saw a few more governments, you know, participate from the earlier sessions.

But it has always been one of the frustrations that we had as a

U.S. delegation, that the membership of so many delegations of

governments consisted primarily of lawyers, sometime academic

lawyers, even though we’re both lawyers.

But the point is that they were not necessarily there with the

full corpus of the political context of their own — of the entire process in mind. It became very much at times a technician’s exercise.

And we tried to keep bringing people back to the reality that this

Court must balance the requirements of international peace and security — and many of us have those responsibilities—with our common interest in preserving international justice.

And in the process, we won a lot of our debates. We won a lot

of our points in this treaty, but on some of them, we did not prevail.

Mr. BEREUTER. Mr. Smith, I’m going to extend myself another

minute or two, and then we’ll be generous with you as well.

Ambassador, the term ‘‘statute’’ confuses me, because as I understand what happened there, this is not consistent with the way we

use the term in the Congress or in making legislation or crafting

within the United States.

Why the term ‘‘statute’’ when we are, in fact, proposing a treaty?

Ambassador SCHEFFER. Let me explain the difference, if I may,

Mr. Chairman. When one speaks of creating a court on an international level, it has to have some governing document for the

functioning of that court. And as with the Yugoslav Tribunal and

the Rwanda Tribunal, the Security Council adopted statutes or a

statute for each tribunal, which is its constitution, basically, the

court’s own constitution, the basic principles by which the court

must function.

It is simply a term of art that has arisen in the international

sphere, and during the talks for the ICC, it is that basic constitutional document of the court itself which is described as the statute.

The treaty itself, when ratified, embodies that statute, and I

guess the best I can say is that it’s simply, in U.N. practice, once

47

you have ratified the treaty, per se, you are also, of course, adopting as part of that ratification package, the statute of the court

itself.

Mr. BEREUTER. Thank you very much. I have further questions,

but we’ll turn now to Mr. Smith under the 5-minute rule, and I will

extend it to seven.

Mr. SMITH. Thank you very much. Ambassador Scheffer, let me

just ask you a question with regard to the delegations.

It’s my understanding that many of the delegations really were

represented by NGO’s. I wonder if you could provide us with a roster of who the participants were? You know, who was in the room,

who was actually leading the effort for the language that ultimately resulted? I think it would be very, very enlightening to get

that.

Ambassador SCHEFFER. I can do that, Mr. Congressman. In fact,

it’s very easy, because at each session, the United Nations compiled

the official list, so we can provide you with that.

Mr. SMITH. I ask that that be part of the record. I think that

would be important.

Mr. BEREUTER. Without objection.

[The information requested was not provided.]

Mr. SMITH. Let me ask you, Mr. Ambassador, your view as to

why Israel was unable to sign the Rome Statute? It struck many

of us as strange that a nation whose people have had such a direct

experience with genocide would feel compelled to stay outside an

institution that is ostensibly designed to punish and prevent genocide and other war crimes?

Ambassador SCHEFFER. Sir, some of the reasons—and I don’t

want to speak for the government of Israel, but since I worked

closely with their delegation, I think they will have confidence in

my saying this, that certainly some of their objections were related

to the very same reasons that we had, particularly the exposure of

non-party nationals, because they may find themselves in that position as well, so they have that concern.

But they also had a very dominant concern that was not necessarily relevant to the United States and the territory of the

United States, but since we have a very close relationship with

Israel, of course it’s relevant to us. And that is the particular war

crimes set forth in article VIII–2(b)(8), which refers to the transfer

of civilian population into an occupied territory.

The manner in which that crime was agreed upon in Rome was

contrary to what we wanted. We felt it was an overreach of existing

international law. It consumed an enormous amount of debate and

time in the negotiations, and Israel clearly could not accept the

way it came out.

We always had a standing principle in our negotiations on the

crimes, which is the crime must reflect existing customary international law, and there must be nothing that contradicts that.

So we knew that we had a very tough road ahead of us after

Rome in the document called The Elements of Crimes. This is

where each crime is further fleshed out in terms of its definitions

and how a persecutor would prosecute the crime or defense counsel

would defend against it.

48

Over almost a year of intensive discussion, we finally were able

to draft the Elements of Crimes for that particular crime in a way

that was satisfactory to the Government of Israel, and also

achieved consensus with other governments. Everything we do has

to achieve consensus in these deliberations.

At the end of that, we were able in the Elements of Crimes to

accommodate the concerns of Israel, to have a footnote inserted in

the Elements of Crimes that would make it clear that international

humanitarian law has to be the guiding principle for the application of that particular crime, meaning existing international humanitarian law.

Israel was prepared to say we’ll interpret it the way we believe

it should be interpreted, and we’ll fight it on that ground. After we

achieved that fix in the Elements of Crimes, Israel expressed its

appreciation to us, and Israel joined in the consensus on the Elements of Crimes, including that particular crime.

Mr. SMITH. Just going back, if you could provide the Committee

with a list of each area where we had a disagreement, I think it

would be very helpful.

But did we, pursuant to consensus, finally accede to the Elements of Crimes and all the other provisions that are in that?

Ambassador SCHEFFER. Yes, we joined consensus on the Elements of Crimes and on the Rules of Procedure and Evidence. That

was on June 30, last month.

Mr. SMITH. So the only remaining area of difference is what?

Ambassador SCHEFFER. Well, we still have a difficulty with the

underlying statute of the Court, which is this issue of the possibility that nationals of non-party states—— Mr. SMITH. If I could interrupt, I thought that was a concern.

But have we agreed to everything in the body of the Rome Statute

by way of consensus—or haven’t we?

Ambassador SCHEFFER. No. We did not join consensus in Rome

on the statute itself.

Mr. SMITH. We were unable to block it, so consensus really didn’t

prevail?

Ambassador SCHEFFER. No. Just to clarify, everything we’ve been

doing in the Preparatory Commission after Rome has been by consensus. At Rome, we called for a vote to state our objection to the

actual stature.

Mr. SMITH. Secretary Slocombe, I noted that the Ambassador

criticized Section VIII of the American Servicemembers Protection

Act, which authorizes the President to use whatever means are

necessary to free any American servicemembers who are held captive by or on behalf of the Court.

The testimony, as he presented it, said that this provision implicitly threatens the Netherlands where the ICC will be

headquartered, with an armed attack by the United States. The

testimony then goes on to assert that the President already has all

the authority he needs to protect American servicemembers anywhere in the world.

The juxtaposition of these two assertions leads me to ask what

the policy of the Administration is if an American servicemember

were imprisoned by the ICC in the Netherlands or elsewhere? If all

other diplomatic efforts to bring about the release of that

49

servicemember failed, would the Administration be prepared to use

force to free him, or would it let him remain a prisoner of an international tribunal whose legitimacy we have rejected?

Mr. SLOCOMBE. Certainly making sure that American service

personnel who are being improperly held are freed, would be a very

high priority. What the mechanics of doing it are, and what would

be workable and in our interest in any particular circumstance

would have to be decided at the time.

Mr. SMITH. What do you believe, hypothetically, would be ruled

in, and would be ruled out? One of the reasons why this legislation

is proposed is to give clear notice as to U.S. intent.

Mr. SLOCOMBE. I think there is no question that the President

would have the authority to do what he thought was appropriate,

so the legislation doesn’t add to the authority.

And, to be fair, the legislation doesn’t say to go bomb The Hague

at the first time you have a dispute about it. I think it’s an example of the legislation, which is basically, I agree, well-intentioned

and, indeed, supports something the Administration agrees with.

It just goes overboard, and, in fact, doesn’t add any power that

don’t already exist.

Mr. BEREUTER. The time of the gentleman has expired. I was

going to recognize Mr. Berman, but I wonder if the gentleman

would have an opportunity to take the chair so that I could go participate on the debate on the Vietnam waiver. Thank you.

The Chair recognizes the gentleman from California for 7 minutes.

Mr. BERMAN. Gentlemen, it is good to have you here and I apologize for missing your testimony.

There are a couple of things I want to pursue. The United States

has decided it does not want to sign and submit to the Administration, to sign and submit for ratification the loan statute. Is

that——

Ambassador SCHEFFER. There is no plan to do either.

Mr. BERMAN. Right. At the same time the legislation prohibits

you from what kinds of activities dealing with this International

Criminal Court and the statute?

Ambassador SCHEFFER. It would shut down, if this legislation

were adopted, it would shut down any ability of any governmental

unit of the United States at the Federal, state or local level, to respond to any request for cooperation or even to allow any investigator of the Court to enter U.S. territory for any purpose that is

before the Court.

Now, the difficulty with that proposition is that it could well be

the case, 10, 20, 25, 30 years from now, that the Court which will

come into existence would have before it a rather odious individual

from somewhere else in the world that truly should stand before

a court of law and be prosecuted for genocide, crimes against humanity, or war crimes. This legislation prevents us from even voluntarily cooperating with the Court to ensure the prosecution of

that individual.

Unfortunately, it sort of has the flip side potential of being a War

Criminal Protection Act, because, in a sense, it would deprive the

Court of evidence or other information that we might be very willing to provide in order to actually prosecute the individual. It also

50

would set up the United States in a rather curious way as a potential safe haven for these individuals, who know that if they arrived

in the United States, there would be no cooperation with the ICC.

Mr. BERMAN. Although just on that point, do our courts have jurisdiction and do we have the ability to prosecute under U.S. laws

people who engage in international criminal conduct?

Ambassador SCHEFFER. Congressman, in some cases we do and

in others we don’t. You know, we are quite familiar with what the

limitations of our own Federal law are at this time, and I think one

of the challenges that we have before us in the coming years is to

take a good hard look at the Federal law and at the Code of Military Justice and determine, are we fully capable of prosecuting individuals on our soil with respect to these crimes?

I think in some cases you will find we are. In others, there are

statutes of limitations that make it very difficult if suddenly the individual arrives 5 years after the commission of the crime. So we

do have a lot of work ahead of us to ensure that we are capable

of prosecuting these individuals in the United States.

Mr. BERMAN. Yesterday I caught just a brief part of the hearing

Secretary Eagleburger and former Assistant Secretary Bolton testified at. And I asked them—I raised the issue, forget 25 or 30 years

from now, let’s assume 60 countries sign and ratify this—how

many have already signed it?

Ambassador SCHEFFER. Ninety-seven have signed it, 15 have

ratified it.

Mr. BERMAN. And 60 is the—— Ambassador SCHEFFER. Is the benchmark.

Mr. BERMAN. And you stated it as it if were as much of a certainty as one can state in this world that 60 will ratify it.

Ambassador SCHEFFER. I think it is the only responsible presumption for our government to have, that it will, in fact, reach 60

ratifications. To assume otherwise would be extremely dangerous,

I think.

Mr. BERMAN. Well, I raised one of the—it was they apprehended,

under some set of circumstances, and decided to prosecute

Milosevic for criminal conduct under the Rome Statute. And there

was information held by the United States or one of its agencies,

or witnesses that were here, and notwithstanding our desire not to

participate in the Court, we thought that this served general world

interests and U.S. interests to help provide evidence to the prosecutor of this case.

And they, Mr. Bolton, in particular, acknowledged that this

would prohibit that kind of cooperation, but he thought that was

good because this Administration in particular would undoubtedly

provide classified information to that Court which would reveal

sources and methods to the detriment of people who had befriended

us and provided certain information to us, and that we had to have

this statute to protect our country from our Administration.

I am just curious about your reaction to that line.

Ambassador SCHEFFER. Well, we share neither Mr. Bolton’s vision of this Administration, nor his vision of the future. As for this

Administration, I think we have established a very firm record

with respect to our relationship with the Yugoslav War Crimes Tribunal and the Rwanda War Crimes Tribunal on the provision of inVerDate 11-MAY-2000 17:09 Jan 16, 2001 Jkt 000000 PO 00000 Frm 00054 Fmt 6601 Sfmt 6601 68483.TXT HINTREL1 PsN: HINTREL1
51

formation to those tribunals. We have a very rigorous procedure,

it is one that is dominated by interagency checks and balances and

I can assure you, being in the trenches of it, that I can state with

great confidence that we are doing our job extremely well with

those two tribunals on this issue.

As for the future, it is somewhat astonishing to conclude at this

juncture that under any circumstances whatsoever in the future,

we might not view it in our national interest to facilitate such a

prosecution. I will remind the Committee that articles 72 and 73

of the ICC Treaty, which we negotiated very intensely in Rome,

and we prevailed on, give us complete authority over what information is provided of a national security character to the ICC. We

have complete discretion.

Mr. BERMAN. May I ask one more question, Mr. Chairman? I do

see my time is up.

I think in response to the gentleman from New Jersey’s question,

you spoke about the situation with Israel. I take it you construe

this bill to prohibit you from participating in those kinds of negotiations in the future?

Ambassador SCHEFFER. I’m sorry, Congressman.

Mr. BERMAN. With respect to the definition of one of the crimes

dealing with transfer of populations Mr. Smith asked you asked,

you told the story of sort of the U.S. role in changing the term of

reference and getting a footnote, and, as a result of that, Israel

withdrew its concerns with that language. My question is, do you

view this bill as prohibiting you in the future from doing that kind

of activity that you did there?

Ambassador SCHEFFER. Thank you very much. I am sorry I

didn’t catch on. First of all, those negotiations on that particular

crime have now come to a close, and we satisfactorily resolved the

issue with that crime.

Mr. BERMAN. Right.

Ambassador SCHEFFER. But with respect to this bill, I must say

that I think the very last government in the world that would want

this bill adopted would be the State of Israel. Why? Because they

look to us in these negotiations to pursue the objectives of this government, which are clearly of great interest and importance to the

government of Israel as well. And therefore, if this bill were to be

adopted, and there were no capability whatsoever to cooperate with

the Court once it is established, we would have no influence with

the Court on any matter that might pertain to the State of Israel.

Why not have that influence?

I cannot conceive of the State of Israel wanting to support this

bill, it would be totally counter-intuitive to their interest to do so.

Mr. BERMAN. Well, but the negotiations you described, as you

pointed out, are already concluded. So maybe it was good that this

was not the law then.

Ambassador SCHEFFER. Exactly.

Mr. BERMAN. But what about now? What more negotiations are

there?

Ambassador SCHEFFER. Exactly. I mean if this bill—— Mr. BERMAN. Are there any more negotiations?

Ambassador SCHEFFER. There are more negotiations in the Preparatory Commission ahead of us, very important ones.

52

Mr. BERMAN. On what kinds of issues?

Ambassador SCHEFFER. On the relationship between the Court

and the United Nations, on the financing of the Court, on the rules

for the assembly of states parties, once the Court is established,

and how the states parties interact with each other, on the privileges and immunities for Court staff, and on the—— Mr. BERMAN. What about the role of forces and peacekeeping operations, is that part of negotiation?

Ambassador SCHEFFER. Well, nothing is ruled out for future discussion in the Preparatory Commission. And the Preparatory Commission will continue until the treaty actually enters into force. So

there is a period of time here where it is going to continue to operate and there are going to continue to be meetings. In fact, there

will be many issues of direct concern to the United States where

we should be there discussing those issues, particularly the financing of the Court.

The problem with this legislation is that if it were to be adopted

at this time, it sends an extremely destructive message to other

governments. Why should they listen to the United States in this

negotiating realm? Shut it down is what they would do. It would

be totally counterproductive.

Mr. BERMAN. All right. So it isn’t that the bill would prohibit you

from participating in those discussions, it is that once you have indicated that in no fashion will you ever cooperate with anything

they do, no matter it is, and by law you are precluded from cooperating, they are not going to give you the time of day?

Ambassador SCHEFFER. That’s right. As I read the bill, and

maybe I am misreading it, but I don’t think this bill, on its face,

precludes us from participating in further Preparatory Commission

meetings prior to establishment of the Court, but it establishes

such a burden on our shoulders going into those negotiations, that

in no circumstances do I foresee this bill enabling, or facilitating,

or strengthening our ability as negotiators on a whole range of

technical issues where we actually have very important interests at

stake.

Mr. BERMAN. Thank you, Mr. Chairman.

Mr. SMITH [presiding]. Thank you very much, Mr. Berman.

Let me ask a few questions and then I will yield to my friend,

Mr. Berman, if he has any further questions.

You mentioned checks and balances that exist within the Yugoslavian War Crimes Tribunal. Do those same checks and balances

also exist in the Rome Statute?

Ambassador SCHEFFER. Congressman, there are many more

checks and balances in the ICC statute, and I can go into some of

those. But the power of the prosecutor is much more qualified within the ICC statute. The principle of complementarity, which is nowhere found in the Yugoslav or Rwanda Tribunal statutes is a central feature of this particular Court.

And, furthermore, this Court, the ICC, depends upon the states

parties to the Court to actually make very important decisions relating to the Court, whereas, the Yugoslav and Rwanda Tribunals

look to no governments whatsoever for their decisionmaking.

Mr. SMITH. Let me ask you what kind of checks and balances

there are. In terms of elected officials, our Founding Fathers, I

53

think, were right in vesting only limited power in each of the three

branches, being so distrustful, as they were, of any single entity

being given so much power. Power corrupts, and absolute power

corrupts absolutely.

What happens if a prosecutor and/or judges were to run amok

and to engage in an ideological crusade against certain individuals?

I think we already have a shot across the bow when lawyers

brought action against NATO for alleged war crimes, that our

planes were flying too high, putting additional civilians at risk, the

choice of targets, which they seem to disagree with. A war crime

then potentially could be in the eye of the beholder. Because, again,

I do think there is some true elasticity to these terms.

Yes, Mrs. Del Ponte did not accept and did not proceed on those

charges, but some other prosecutor may not be so favorably inclined. You might want to comment on that. Looking back, if the

Rome Statute were in effect during World War II, for example, and

we dropped the bomb on Hiroshima and Nagasaki, and we did the

firebombing of Dresden and the other German cities with a huge

number of civilian casualties, would that be construed as a war

crime under the plain meaning of the Rome Statute?

Ambassador SCHEFFER. Well, Congressman, it is far too speculative to try to get into that. Remember that during World War II,

the question is, were those actions violations of codified or customary international law at that time?

Mr. SMITH. That is not the question I am asking.

Ambassador SCHEFFER. No, I know.

Mr. SMITH. Fast-forward those military actions that this country

undertook with our Alliance.

Ambassador SCHEFFER. It is entirely speculative to say we would

use exactly the same military tactics today as we did during World

War II. I would not speculate in that direction, not at all. We are

far more precise——

Mr. SMITH. But there is no doubt a reasonable man or woman

could use the Rome Statute in cases analogous to matters of historical fact, where military decisions were made which resulted in

huge casualties. Thankfully, at least, the consequence of Hiroshima

and Nagasaki was the ending of the war. But there is an argument

that has been made ever since as to the advisability of those actions.

I think it is a fair question. Past is prologue. We may be faced

with this in the future. We all know that NATO, in terms of its

war doctrine, would rely on superiority, at least during the Soviet

days, rather than quantity. Quality was what we would rely on.

There is the potential that a United States President, or a French

President, or a British Prime Minister may have to make a decision some day to use nuclear weapons. It is not beyond the realm

of possibility and it is not highly speculative. Those things have to

be thought through.

Since we have the historical record, I think it needs to be

plugged in to see whether or not this would have triggered a war

crimes prosecution.

Ambassador SCHEFFER. Well, we were careful in the drafting of

the statute, as well as the elements of crimes, to establish very

high barriers to actually launching investigations and prosecuting

54

the crimes. Not isolated incidents, there has to be systematic widespread events. There have to be plans and policies to directly assault civilian populations. If military necessity dominates the reasoning behind the use of any particular military force, then that is

in conformity with international law and it is in conformity with

the statute.

But if you are asking me, speculate as to whether or not it can

conceivably be drawn that the United States takes a particular

type of military action without describing what the intent was behind it, the plan or the policy behind it, I can’t answer questions

like that because you have to go through every step of the analysis

before you can answer whether or not this statute would actually

apply to that particular use of military force.

Mr. SMITH. Well, one of the more perverse outcomes would be

that our military strategists would be faced with factoring in not

just what is in the best interests of the United States and our allies, and how are we more likely to achieve a military end to a conflict. They would also have to factor in whether or not such an action would violate the Rome Statute.

Let me also say, our nuclear doctrine rests on deterrence, and if

the Russians were to attack us or to launch, we would destroy Russian cities. How would that fit into a Rome Statute world?

Ambassador SCHEFFER. Congressman, this statute, as I said, specifically provides very high barriers that have to be met.

Mr. SMITH. But crimes of aggression aren’t even defined yet.

Ambassador SCHEFFER. And it is contrary to U.S. Federal law as

well as the Uniform Code of Military Justice to violate the laws of

war. So I would assume the plan or policy of the United States

would not be to violate the laws of war. If it were the plan or policy

to violate the laws of war, then we have a lot to answer for. But

if it is not the policy to violate the laws of war, there should be

symmetry between our actions and what has been set forth in the

statute, which we agree with.

We agree that the crimes set forth in the statute are crimes

under customary international law which we must adhere to. We

are not disagreeing with what is in the statute in terms of the list

of crimes, we agree with them. They must be complied with.

Mr. SMITH. And again, signing a document that still has not defined crimes of aggression—— Ambassador SCHEFFER. And by the way, I noticed that in your

opening statement. I did want to get back to you on that. The

whole process in the Preparatory Commission now is to try to determine, can there be a definition for aggression? The crime of aggression is not actionable under the statute unless there has been

an agreement among the states parties to the statute at the 7-year

review conference as to what is the definition of that crime. So you

can’t—there is no way to prosecute that crime until such a definition has been arrived at. And we have a very significant coalition

of governments in total agreement with us as to how to proceed in

those talks to define the crime of aggression.

Interestingly enough, under the statute, if one is a state party

to the statute, you have every right, if a new crime is added to the

statute, to completely exclude yourself from the coverage of that

crime.

55

Mr. SMITH. Mr. Slocombe, Secretary Slocombe, if you could respond to the hypothetical posed earlier about not just our deterrence strategy, which is based on the obliteration of cities, unless

something has changed there that I don’t know about, but also the

bombing of Hiroshima, Nagasaki, and the firebombing that took

place in Germany. If the Rome Statute were in effect, would that

have precluded those actions?

Mr. SLOCOMBE. Mr. Smith, I think the way I would answer that

would be to say that, in our view, if the Rome Statute were properly applied, American military personnel or the political officers,

the President and, I guess in those cases, the Secretary of War, the

Secretary of the Navy who ordered operations could not properly be

prosecuted under them because they were legitimate. In the case

of Hiroshima and Nagasaki, and, indeed, in general, with respect

to the strategic bombing campaign against both Japan and Germany with conventional weapons, I would maintain that, judged by

the context in which they occurred, they were not violations of the

law of war under any circumstances.

So that, as a lawyer, the way I would answer the question would

be that the United States would have a good defense if such cases

were, in your case, hypothetically tried.

What I am concerned about, what the United States is concerned

about, is that there could be a politically motivated prosecution

based on what would, in our view, be a misinterpretation of the law

of war, and, therefore, a misinterpretation of the Rome Statute.

And once one is in a court, once you concede the principle of jurisdiction, there are no guarantees as to the result.

Mr. SMITH. So it would be possible that a Hiroshima, Nagasaki

type action or the firebombing in Japan and in Germany could be

prosecuted in the future if such a thing were—— Mr. SLOCOMBE. As we have said repeatedly, our concern in respect of this statute, in respect of the Court, is precisely the concern about politically motivated, in effect, bad faith prosecutions.

Exactly.

Mr. SMITH. But what about a good faith prosecution, by someone

who honestly believed that Hiroshima was a war crime? I mean it

is possible that it could happen?

Mr. SLOCOMBE. Well, there is no question that on its face, the

Court has jurisdiction over actual ‘‘war crimes’’. That is what the

statute says, that is what is intended. Our concern, the United

States military, through the United States military justice system,

prosecutes and prosecutes vigorously well-founded allegations that

American military personnel have violated the law of war.

We do not need the International Criminal Court to deal with

that problem. So that is a non-problem. Our concern is not that

there would be valid prosecutions of American military personnel.

Our concern, rather, is, as I said, and as we had said repeatedly,

our concern is with politically motivated prosecutions based not

really on serious allegations of war crimes, but on disagreement

with U.S. or other alliance policies, of which I think the rejected

allegations with respect to Kosovo are a good example.

Mr. SMITH. Could I ask, and ask you to provide it for the record,

that the Pentagon undertake an analysis as to whether or not

Rome would apply to World War II actions like I mentioned before?

56

Ambassador Scheffer, I think if these other issues were ironed

out, you probably would like to see us sign this. But we have got

to know what we are heading toward, and we need to look back before we look forward. Such an analysis, if it hasn’t been done, really should be done.

Mr. SLOCOMBE. It has been done, that is the reason we opposed

the treaty.

Mr. SMITH. What has been done, a look back at past conflicts?

Mr. SLOCOMBE. Well, I don’t know that anyone did it in the mind

of saying Dresden could have been prosecuted, I think they did it

in the mind of saying you don’t have to go back to World War II

or to the Vietnam War to say that there is a very real danger that

there could be politically motivated prosecutions through the International Criminal Court, and that is precisely the reason that not

just the Department of Defense, but the Administration voted

against the text and have refused to sign the treaty.

Mr. SMITH. And Ambassador Scheffer, you agree with that, there

could be politically motivated prosecutions?

Ambassador SCHEFFER. Precisely.

Mr. SMITH. I’m sorry?

Ambassador SCHEFFER. Yes. Yes.

Mr. SMITH. Do you, Ambassador Scheffer, personally think that

President Clinton made a mistake when he decided against signing

the treaty in 1998?

Your mike is not on.

Ambassador SCHEFFER. I’m sorry, Congressman. My answer to

your other question was yes.

Mr. SMITH. OK. Thank you.

Ambassador SCHEFFER. No, there was no mistake whatsoever. In

fact, the issue of signing was simply not the issue. In Rome it was,

do we agree with other governments to release the text of the statute out of the Rome Conference in the form that existed at the end

of the conference? That was the only issue there.

It truly is a more responsible course to take not to consider even

the issue of signing until one sees the totality of this treaty regime.

Mr. SLOCOMBE. If I could, Mr. Chairman, could I read a sentence

from a letter which Secretary Cohen, with the concurrence of his

colleagues in the senior levels of the Administration, sent in support of Ambassador Scheffer’s effort, which responds exactly to

your point? It reads, ‘‘As it currently stands, the Rome Treaty could

expose servicemembers and Government officials of nonparty states

to criminal liability based on politically motivated charges brought

by other states that object to the nonparty states’ international

policies.’’ That is our position and that, in a sentence, is the reason

for our concerns.

Mr. SMITH. Let me ask a final question or two. Ambassador

Scheffer, how likely do you really think it is that you will succeed

in your efforts to get the ICC to forego criminal jurisdiction over

Americans and persons from other countries that are not a party

to the Rome Statute? And what happens if you fail? Obviously

there are a different set of diplomats and parliamentarians that I

was meeting with, but at the Bucharest Conference we were all

alone in our opposition. I was amazed in speaking one-on-one during the course of the week in Bucharest at the OSCE ParliamenVerDate 11-MAY-2000 17:09 Jan 16, 2001 Jkt 000000 PO 00000 Frm 00060 Fmt 6601 Sfmt 6601 68483.TXT HINTREL1 PsN: HINTREL1
57

tary Assembly at how Pollyanna-ish some of the views were of

members who did not have a clue what was contained in the statute but just said ‘‘We want an ICC and that is it.’’ The British were

probably more emphatic than anyone, although they seem to have

been informed and knew the contents of the statute. They were vigorously pushing for rapid ratification, which is what the operative

language was that they were offering.

The Germans offered it. We tried to weaken it with an amendment and it was not acceptable, regrettably. It seems as if, as Mr.

Bereuter pointed out earlier, in terms of a willingness to just cede

sovereignty, the Europeans have no problem with that, it seems.

But obviously we do.

What is the next step if they do not include us—or exclude us,

I should say—from jurisdiction? What would be the next step?

Ambassador SCHEFFER. Well, I think there will be some—let me

just describe it as serious results if we cannot prevail with a provision or a document that is satisfactory to us in the Preparatory

Commission talks.

I think as Under Secretary Slocombe said earlier we are going

to have to take a very serious reassessment of this. I think there

is going to be a clearer assessment as to what we can consider in

terms of military contingencies for this Government, but at the

same time I would hope that that assessment could, the fact that

there would be such an assessment would encourage a good number of governments, particularly our allies, that they have far more

to gain from this process from the United States being a cooperative partner in this Treaty, even as a nonparty, than they do to isolate us by not taking into consideration the very specific requirements that we have in the international community, so all I can

say is I hope I can succeed.

I don’t want to pretend to say that I have got an easy job ahead

of me. Right now the deck is stacked against me, but we have to

try. This is a step-by-step process. We have had to exercise some

patience in getting there, but every time we have pursued our objectives since Rome to actually accomplish what we need to accomplish, we have accomplished it, so I want to go that final mile and

see if we can accomplish this objective.

Mr. SMITH. Again, what is the likelihood of doing it? I mean Secretary Bolton and——

Ambassador SCHEFFER. It could be 50–50 at this stage.

Mr. SMITH. Secretary Bolton and Eagleburger, former Secretary

of State, have made it clear that they thought we lost the fight 2

years ago.

Ambassador SCHEFFER. Well, as I said, we simply do not share

their vision of either having lost or waging this campaign. I think

you have to be in the trenches of it to recognize that other governments truly do not want, at least many other governments, truly

do not want to see the United States walk out of this process. They

know how valuable we can be in the long-run for this Court and

therefore I would hope that we could persuade them that a reasonable accommodation within the Treaty regime of U.S. interests is

going to be to the betterment of the entire process and to the Court

itself.

58

Mr. SMITH. I would respectfully suggest that we did lose it 2

years ago. We are trying to fix it now, and I obviously wish you

success. We all would wish you success on that, but, you know, you

mentioned serious repercussions or serious consequences. I think

we are more likely to avoid that if we are very specific in saying

this or that happens. Predictability I think is your friend now. Can

you elaborate on some of the consequences if we lose?

Ambassador SCHEFFER. Well, as we have already stated to our

colleagues in other governments in letters that the Secretary of Defense has sent to his counterparts, we would have to re-evaluate

our ability to participate in military contingencies if we cannot prevail on that, and I think that is a fairly powerful consequence.

In addition to that, I think governments truly are having to

gauge what is the consequence if the United States cannot be a

good neighbor to this treaty. It will severely cripple the operation

of this Court if we cannot be a player in it.

Mr. SMITH. How would it affect peacekeeping in your view, and

Mr. Slocombe, you might want to add your views on peacemaking

as well?

Ambassador SCHEFFER. I think it could have a very severe impact on that. Walt?

Mr. SLOCOMBE. What the Secretary of Defense said in his letter

was unfortunately a negative result—that is, a negative result with

respect to the article 98 effort—could have a major impact on our

decision whether to participate in certain types of military contingencies.

That is what he said. I would not see that as an absolute judgment that we will never send American troops overseas in any situation, but it would have to be a factor we would have to take into

account.

Mr. SMITH. Just getting back to the legislation, and I know in its

current form you have made it clear you don’t support it, but can

you not at least admit there is some value in again broadcasting

to the world that we are very serious and that the Congress is very

serious about there being very negative consequences if this thing

proceeds and we are included, having not been made a party to it,

having not ceded or signed it?

Ambassador SCHEFFER. Well, I think there is some value to it

and the mere existence of the legislation I think has sent that signal very loudly and clearly.

What I am saying is that actual adoption of this legislation

would then have the reverse effect on our ability to actually negotiate our common objective.

Mr. SMITH. Let me just take that one step further. I mean the

President obviously would have the capability of vetoing the bill if

he thought it was not the right vehicle.

But let me point out that the Congress also has prerogatives, and

we do fund peacekeeping. We obviously provide the necessary and

requisite moneys for our military. It seems to me that we need to

be very much a part of this because the outcome could be a disaster

going forward for the world and for U.S. men and women in uniform who may be deployed overseas.

As I have read this, and I have read just about everything I can

get my hands on, I have grave concerns. I said at the outset that

59

no one has been more favorably inclined toward ad hoc tribunals

than I am. When we had the first hearings in the Helsinki Commission on what became the Yugoslavian Tribunal we were being

told by its leader, the man that was charged by the United Nations

to take on the responsibility, that it was designed to fail, that he

had been given insufficient resources, that it was nothing but fluff

in order to placate certain individuals in countries, but it really

was not a serious effort.

Now if we go in the other extreme and all of a sudden pass or

enact something that potentially could prosecute the President or

our Secretary of State or Defense or Supreme NATO Allied Commander, I think we have erred significantly as well, and I don’t

think there has been enough vetting of this issue.

I think a very small group of people have decided this. As I mentioned earlier, you know, I really want to take a look at who the

actual participants were. We have heard that NGO’s were filling

the seats and taking on the responsibility of negotiating rather

than the respective governments, who were kind of like brushed

aside and the designated hitters were making decisions. That is serious if that indeed turns out to be the case. So I think there has

been far less scrutiny brought to this, and hopefully these hearings

are the beginning of even more focus by the Congress, but I thank

you for your testimony.

Mr. Tancredo is here. Do you have any comments?

Mr. TANCREDO. No.

Mr. SMITH. I do thank you for your comments. We look forward

to working with you in the future.

Ambassador SCHEFFER. Thank you, Mr. Chairman.

Mr. SLOCOMBE. Thank you, Mr. Chairman.

[Whereupon, at 11:51 a.m., the Committee was adjourned.]

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