Looking down the list of specific “crimes against humanity,” one finds that many have
been diluted for the same reason. For example, “enforced disappearances” can be
prosecuted, but only as long as they occur over a “prolonged time.” This notion has no
place in the decisions of the Inter-American Court or the UN declaration on
disappearances. Serious compromises were also made on the definition of “torture” and
“deportation.” Neither can be taken up by the ICC if the act was deemed “lawful” by the
national authorities. Some fear this could open the way to the forcible expulsion of
asylum-seekers or Roma who are suddenly declared “unlawful.” But once again, this was
the price to be paid for getting these crimes listed at all. India had demanded that
disappearances be excluded altogether.

War Crimes – the Specific Crimes

A similar battle was fought out over the definition of war crimes. Here, it must be said,
there were some imaginative, positive achievements. Attacks against aid workers and
unarmed UN peacekeepers will be punishable as a war crime, in international or internal
armed conflicts. This was not without controversy. Some argued that aid workers were
already protected under the Geneva Conventions, which proscribe attacks on civilians.
Listing specific categories, they warned, would only endanger those not included. But
this concern was dwarfed by the need to provide greater protection for aid workers. By
way of a reminder of the importance of this inclusion, several UN officials were killed in
Tajikistan two days after the conference ended.

Women’s groups also succeeded in getting rape, forced prostitution, trafficking in women
and children, and forced pregnancy declared as war crimes and crimes against humanity.
Forced pregnancy was resisted to the end by Arab governments and nongovernmental
right to life groups, who exploited fears that its inclusion would allow the court to
prosecute doctors who refused to provide abortions. This was one of the least savory
skirmishes in Rome, because both sides gave the impression that their interest lay in
influencing the larger UN agenda, instead of preventing the terrible sexual crimes
committed against women (and men) in such places as Bosnia and Rwanda. In the end,
though, the agreed definitions were a strong restatement of priorities.

The skirmishing over war crimes ranged far and wide. UNICEF and children’s groups
had hoped that the court would reduce the involvement of children in war, both as victims
and participants. There are good things in the statute. For example, the court will not
prosecute children under the age of 18. In addition to banning the use of child soldiers
under 15, it will also be a war crime to “use” children in war for purposes other than
fighting – for example delivering ammunition or reconnaissance missions.

But some key provisions on children were seriously weakened. The UN Convention on
the Rights of the Child sets 15 as the minimum age of recruitment, which is too low for
many but not something that could be changed in Rome. Given this, campaigners wanted
as much protection as possible built into the statute. Here they ran into American
concerns that the recruitment of 17-year-olds by the US army might be covered at some
stage in the future. As a concession to the US, “recruitment” was changed to “conscripting and enlisting.”

The first reaction of children’s advocates was that this would make it harder to prevent the forcible recruitment of children by guerrilla groups. In another piece of chicanery, Lebanon insisted on the insertion of “national” before
“armed forces” in order to exempt the recruitment of children by the Hezbollah in
southern Lebanon. This too was accepted to bring in the Arab delegations. But it may
well create a much broader loophole.

Many will feel the Rome conference missed a huge opportunity to advance the campaign
against landmines. A clear majority of governments wanted the use of nuclear weapons,
landmines and blinding lasers declared war crimes, and prosecutable by the ICC. But this
was resisted by the nuclear powers. Russia, China, Britain and the United States also
refused to countenance any inclusion of landmines, whose use they feel is still permitted
by customary international law despite growing support for a total ban under the Ottawa
treaty.

This produced the worst kind of compromise. Poison gas and dumdum bullets are
outlawed. But the vastly more destructive nuclear weapons, landmines and blinding
lasers are not. Nor are chemical, biological or bacteriological weapons, which are already
subject to nearly universal prohibition. The statute allows for “indiscriminate” weapons
that are covered by a comprehensive ban to be included at a review conference. But once
again, that would not happen for seven years after the treaty enters force, and many feel
that including landmines under the statute would have prodded governments to join the
international campaign for a total ban.

War Crimes – the General Debate.

Overall, the section on war crimes was not as damaging as many had feared. At one stage
the United States was arguing for a very high threshold, which would have put all but the
most egregious war crimes beyond the scope of the court. The Arab states led a large
group of nonaligned governments that did not want the court intervening in internal
armed conflicts. France dug in its heels over war crimes as a matter of principle, which it
felt could be used against French soldiers in Africa and even France’s nuclear weapons
program.

All this prompted the International Committee of the Red Cross (ICRC) to issue an
extraordinary series of public warnings, the like of which has rarely been seen from this
august and discreet agency. This helped to ensure that internal armed conflict remained in
the statute. Indeed, given that the majority of today’s crimes occur in such wars, their
exclusion would have been simply unacceptable. Moreover, a late insertion by Sierra
Leone ensured that the court will also be able to take up crimes committed by armed
groups fighting against each other, as well as government forces.

But once again, some serious compromises had to be accepted. In the first place, although
the threshold for war crimes is lower than it could have been, the court will still only be
able to prosecute for crimes “in particular when committed as a part of a plan or policy or as part of as large-scale commission of such crimes.” This is intended to ensure that the
court concentrates on the larger, more significant crimes (The US also viewed it as a way
of ensuring that Americans are not prosecuted for isolated acts in war). But this could
give the impression that there is no such thing as the isolated war crime, which would be
dangerously misleading. Too often, war crimes do indeed consist of swift and brutal
actions against noncombatants – a rape here, a murder there. That will remain a crime,
punishable under international law, even if the international court finds such acts beyond
its own scope.

As with crimes against humanity, government after government tried to impose its own
anxieties – or was it guilty conscience – on these definitions. In return for allowing the
court to prosecute war crimes in internal armed conflict, governments will be able to
“maintain or re-establish law and order or to defend the unity and territorial integrity of
the state by all legitimate means.” This could provide a useful loophole for governments
like Indonesia, Nigeria, and Algeria as they seek to quash protest with violence.

Here, too, the United States was responsible for inserting a dangerous exemption. Under
a compromise worked out at a diplomatic conference in the 1970s, an army can launch an
attack which could cause incidental civilian losses as long as this is justified by the
military advantage. In Rome, the United States demanded that the word “overall” be
introduced in relation to the probable military advantage. This could allow attackers to
assault a town as part of a larger military campaign, or in the hope of deriving
unspecified future military benefits. Once again, it could well be construed as weakening
the protection of noncombatants in war.

But another major initiative by the United States on war crimes was rejected. Just prior to
the Rome Conference, the US introduced a long and complex document (“elements of
crimes”) that proposed sharper definitions of crimes. Given that the court will have to
establish criminal responsibility, this was not unreasonable. Some of the phrases used
(e.g. “treacherous”) are clearly unsatisfactory. The problem was the paper came at the last
minute, and so was viewed as a delaying tactic. The proposal survived in the eventual
statute, but in greatly diluted form. The proposed elements will merely help the court to
interpret crimes, and will have to be adopted by two thirds of the Assembly of States’
parties.

At this early stage it is impossible to predict what impact these new definitions will have.
One important article states clearly that nothing in the statute will affect current or future
international law. But the ICRC is apprehensive that it may complicate the its efforts to
promote the Geneva Conventions and additional protocols.

The Fight Over Jurisdiction

As expected, the second broad battle in Rome was fought over the jurisdiction of the
court. Once again, it clearly divided those in favor of a strong court from those that fear
what it might do.

Referrals: Cases will be referred to the court by the UN Security Council, by states’
parties to the ICC treaty, and by the court’s prosecutor. The inclusion of the latter
represents a significant achievement by nongovernmental organizations, which had
insisted on the court having a prosecutor who could act proprio motu – that is, initiate his
or her own cases and act on information from whatever source.

The United States had strongly opposed this, arguing that the prosecutor would be
bombarded by an intolerable amount of information and political pressure. But NGOs
replied that the court would simply never receive cases if it were left to the Security
Council or governments. There is certainly plenty of evidence to this effect. During the
1970s and 1980s, no government accused the Khmer Rouge of genocide for their
atrocities (1975-1978). None accused Iraq of war crimes for having used chemical
weapons against the Kurds of Halabja (1988). The reason was simple: both the Khmer
Rouge and Saddam Hussein were viewed as allies by Western governments.

Even today, the UN Security Council is selective about when and how it prosecutes war
crimes. Tribunals have been set up on the former Yugoslavia and Rwanda. But the
Council recently sidestepped calls to establish a tribunal to investigate the mass killing of
refugees in the Eastern Congo (1996-1998). This, say NGOs, is politicization on a grand
scale and a powerful argument for an independent prosecutor. Not only did the Rome
conference agree, but it also established a reasonable balance between the Security
Council and Court. The Council will be able to refer cases. It will also be able to
withhold cases from the court that would compromise its own peace-making efforts – as
long as there is consensus among the five permanent members on the need. This will
prevent any single government exercising a veto and keeping a case away from the court.
On the other hand, so many other curbs and restrictions have been built into the court that
many fear it will still have a hard time launching a prosecution.

Preconditions to Jurisdiction – acceptance by the state of nationality or territory. A case
will only be taken up if the state where the crime occurred or the state of the accused’s
nationality has ratified the ICC statute, or agreed to accept the court’s jurisdiction in the
case concerned.

This was the single most disputed article at Rome. It is unacceptable to the United States,
because it could allow the court to have jurisdiction over a national from a country that
has not ratified the ICC treaty. If, for example, a suspect flees to a country that has not
ratified the ICC treaty, he or she would have to be handed over if the state of nationality
or territory so demanded. This, to the US, violates a cardinal law of international relations
– that states are not bound by a treaty they have not ratified.

But NGOs fear the opposite scenario. Suppose, for example, that a tyrant flees to a third
country after genocide has occurred, and is arrested. This (custodial) state has ratified the
ICC treaty, and wants to surrender the suspect to the ICC in the Hague. But this will not
be permitted unless the state where the crime occurred and the state of the accused’s nationality has agreed. It could, says Richard Dicker of Human Rights Watch, allow war criminals to travel freely around the world.
Both scenarios are conceivable, but on balance the NGO concerns seem more realistic,
because Rome made so many other concessions to governments.

Prior Notification and Complementarity: At the insistence of the United States, the
prosecutor will first notify all states parties as well as those who would exercise
jurisdiction over the case (territorial and nationality states) before a case is taken up. This
will allow the government a first shot at prosecution. Unlike the two ad hoc tribunals,
which have priority over national courts by dint of having been created by the UN
Security Council, the international criminal court will only take up a case if the
government is “unable or genuinely unwilling” to do so. How this will be decided in
practice is still not entirely clear. The aim is to prevent sham trials, or a case being taken
up by a country where the judiciary has collapsed. But there could be plenty of
disagreement about when this is the case, and governments will have several chances to
challenge the admissibility of a case.

Pre-Trial Curbs: The prosecutor will be kept on a tight leash before and during
investigations, and this will certainly rule out any frivolous or unjustified prosecutions.
He or she will have to seek permission from a pre-trial chamber (consisting of 3 of the 18
judges) before launching a case. Once a case is under way, the prosecutor will have to
seek the cooperation of the government in any investigation that could require
compulsory orders (such as search warrants or exhuming mass graves). He or she will
only be able to interview voluntary witnesses or consult libraries without being under the
scrutiny of the local authorities. The ad hoc tribunals have shown that this could be very
valuable, but governments have certainly done much to guard against maverick
investigations by the ICC prosecution.

Opting out of War Crimes: The biggest loop-hole of all will allow any state that ratifies
the statute to prohibit the court from prosecuting their nationals for war crimes for seven
years after it ratifies. This was a concession to the French, whose adherence (with
Britain) ensures the court of at least two permanent members of the Security Council. But
it could create a two-tier system of crimes under international law once the court comes
into existence. At one level, there will be genocide (which very rarely happens) and
crimes against humanity. All states that ratify will accept the court’s automatic
jurisdiction over these two categories. At another level there will be war crimes (which
happen wherever soldiers carry a gun). For these, the ICC statute will allow states to
simply walk away for seven years. Hopefully, no government will have to gall to accept
such an invitation. But it would well be that this will weaken international efforts to
outlaw and deter war crimes, and confirm the worst fears of the Red Cross.

The Battle Ahead – and the Role of the United States

Whether or not these fears are realized could depend on how the results at Rome are sold
to the public and promoted. Will the emphasis be on the risk or on the potential?

Like it or not, one has to start with the United States – one of just seven governments that
voted against the statute in Rome. Not only will the court be weaker for the absence of
the US, but the US has repeatedly shown its ability to undermine and work against
treaties that do not meet with its approval. It is hardly reassuring to hear US spokesmen
insist they will work to “improve” the court in the years ahead.

If the Rome Conference is anything to go by, this means ensuring that the court will
never, under any circumstances, prosecute Americans. During Rome, the US repeatedly
raised the specter of Americans serving in peacekeeping missions being arrested and tried
in a kangaroo court. This certainly betrayed extraordinary insecurity on the part of a
country that sees itself as the sole remaining superpower. But is it justified?

In one respect, yes. This is neither the time nor place to review peacekeeping operations
in detail, but there can be no doubt that several recent missions have left much to be
desired. Hundreds of Somali civilians were killed by UNOSOM in 1994. UNPROFOR
troops were accused of frequenting rape hostels and smuggling duty free goods into and
out of Sarajevo. UNTAC detained several prominent Cambodians for months without
trial in Cambodia (1992). (One Khmer Rouge colonel even died in a UN jail.) Very little
has been done to prevent these excesses. Canada, Belgium, and Italy held inquiries into
allegations against their troops in Somalia, but peacekeeping missions could clearly
benefit from more discipline and accountability. War crimes are war crimes, whether they
are committed by Americans, Britons, or Iraqis – in the service of a UN mission or any
other military activity. The best way to prevent “maverick” charges against peacekeepers
is to tidy up peacekeeping.

But to many governments at Rome, this concern about American peacekeepers seemed
little more than a pretext. As it is currently constituted, there is not the remotest chance of
the court prosecuting an American for frivolous reasons – any more than it would
prosecute a doctor who refused a request for abortion. As a result, observers in Rome
looked for a deeper explanation.

Many found it in the presence of military experts on many delegations, not just that of the
United States. This explained why the US wanted “conscripting” children, instead of
“recruiting” and why Britain, China, Russia, and even New Zealand joined the US in
agreeing that soldiers in the heat of battle must always obey orders even if it means
shelling the occasional church. There has always been a tension between obeying the
orders of a superior and the dictates of natural law. The Rome conference arguably tilted
the balance in favor of superior orders, which will be accepted as an excuse against
criminal responsibility except in cases of genocide and crimes against humanity. Many
concluded that several of these American interventions on war crimes were intended to
give the fighting man more leeway.

Then again, at a more political level, many doubted whether the US Senate would ever
ratify the statute. This, more than anything, convinced them not to create a weak and
pallid court, even if it meant snubbing the United States. Here the US has only itself to
blame. Time and time again in the last 20 years, US administrations have exploited the dark fears of Americans towards multilateral commitments instead of challenging these fears head on. This was the fate of the Law of the Sea Treaty (originally proposed by a Republican administration), the repayment of American dues to the UN, the UN
Convention on the Rights of the Child, and even the additional protocols to the Geneva
Conventions. In each case, the United States pressed the world to produce a “responsible”
package, only to spurn it.

Delegates in Rome saw no chance of this changing as long as US foreign policy is
directed by Senator Jesse Helms, chairman of the Senate Foreign Relations Committee.
This was one more reason not to create a court that is dedicated to the proposition that it
will never prosecute Americans. Delegations were stiffened in their resolve by one of the
best organised and best-informed nongovernmental campaigns in the history of UN
lobbying.

Given this, a confrontation was inevitable. The Americans demanded a watertight
guarantee that the court would not prosecute nationals from states that do not adhere to
the new court. When this was not forthcoming, the US joined Libya, Iraq, Israel and three
others in lonely opposition. Now the Clinton Administration threatens to actively work
against the establishment of the court.

This would be tragically misguided. By trying to safeguard the court against “mischief,”
the US has weakened its ability to protect noncombatants in war. Many delegations have
deep misgivings about the concessions made in Rome. That, if nothing else, should
ensure that any campaign to reopen the Rome package by the US will be fiercely resisted.

This  blog was written for On The Record, a newsletter published by The Advocacy Project to report from the 1998 Rome Conference to establish an International Criminal Court. Click here to read the entire series.