July 18, 2000.
"The rule of law is dead.
More than 6,000 US lawyers have come to London for the conference of the American Bar Association this week. But there is a great paradox about America's contribution to global justice, namely why the nation which has done so much in the past to inspire it should currently take the lead in its subversion.
What a fall is there, from Harry Truman's declaration in 1945 of his belief in the "beneficent power of law and the wisdom of judges" to punish Nazi crimes against humanity at Nuremberg, to the braying of Jesse Helms and the equivocations of Bill Clinton's law professors as they cast the US vote against Nuremberg's offspring, the International Criminal Court.
That wretched spectacle was at the UN conference in Rome in July 1998, when the US sided with six human rights abusers (including China, Libya, and Saudi Arabia) to vote against an ICC statute supported by 120 of the world's more decent nations - the vast majority of them American-allied democracies, led by Canada, Britain and Germany. The US paranoia over international criminal justice has not abated: when its Senate foreign relations committee chairman addressed the UN security council in January, Jesse Helms fulminated like a confederate bully-boy against the very idea of an international court ever trying an American soldier - even if his name were Lieutenant Calley.
What makes the US position even more difficult to understand is that the Rome Statute embodied almost every concession that the US had demanded. The Clinton administration had previously been supportive, and the president had personally advocated a world criminal court during his visit to Rwanda earlier that year. His personal authority was badly eroded by the summer (cynics have noted that Monica Lewinsky's blue dress was undergoing DNA analysis at the time of the vote) and the Pentagon had been lobbying its western allies against the court for months (although remarkably, none succumbed). It was Senator Helms's bottom line - that the court would be "dead on arrival in Congress" if it came with any conceivable possibility of indicting an American - that finally dictated the US vote. A new Congress, and a new president, may be willing to think again.
Nuremberg created the international law precedent for punishing war crimes and crimes against humanity, irrespective of the national sovereignty protecting their perpetrators. The UK opposed the tribunal - Churchill wanted the top 70 Nazis shot on sight, and his Lord Chancellor (Simon) argued that judges "however eminent or learned" were incapable of rising above the politics of an international criminal trial. Truman threw his weight behind Supreme Court Justice Jackson, who argued that summary executions "would not sit easily on the American conscience or be remembered by our children with pride. The only other course is to determine the innocence or guilt of the accused after a hearing as dispassionate as the times and horrors we deal with will permit and upon a record that will leave our reasons and our motives clear".
The Nuremberg legacy, supplemented by that great triptych of post-war human rights treaties (the Universal Declaration, the Genocide Convention and the Geneva Conventions) envisaged (specifically, in the Genocide Convention) that an international criminal court would in due course try the authors of the gravest crimes against humanity. That hope was soon immured in the deep-freeze of the cold war, but was realised - if only on an ad hoc basis - by the Hague tribunals dealing with war-crimes in former Yugoslavia and Rwanda. Although their progress has been painfully slow, they have by now dealt with some serious criminals (including Hutu government ministers, a Croatian general and Serb concentration-camp commandants) and their record suggests that America has nothing to fear from international justice in terms of maverick or political prosecutions or unfair trials.
The need for global criminal justice is greater than ever. Pinochet would have been a perfect candidate for arraignment at the ICC, given Chile's reluctance to put him on trial and the problems that any alternate trial in Spain might have encountered. It is outrageous that mass murderers of the ilk of Idi Amin (in Saudi Arabia) and Colonel Mengistu (the mass murdering Marxist of Ethiopia, under Robert Mugabe's protection) should live happily ever after their crimes. The Pol Pot lieutenants in Cambodia, the generals in Indonesia, Foday Sankoh (who gave the orders for mass-mutilation in Sierra Leone) are just a few of the current candidates for international justice. Since the ICC is not retrospective, they may well escape: the sooner it is up and running, the better.
How effectively it will run, absent of US support, is not easy to predict. What is crystal clear, however, is that American concerns are misplaced. The prospect of the court's prosecutor indicting an American soldier for a crime against humanity is minimal, thanks to the concessions which were made to the US. The "complementarily" provisions ensure that the world criminal court will take jurisdiction over a national only where his or her own country is unable or unwilling to take disciplinary action. The power of the prosecutor, moreover, is supervised at every stage by the court's judges and overseen by the security council (where America holds a veto) so there is no prospect of some global equivalent of Kenneth Starr invigilating US presidents and generals and secretaries of state.
The only prospect of indicting an American - and it was the refusal to compromise on this point which caused the US to cast its negative vote - is in respect of the ICC's power to punish UN peacekeepers who commit war crimes, if they are not proceeded against by their own nations. This is not hypothetical: in Rwanda, two detachments of "blue helmets" from Ghana became complicit with the genocide, handing over the Tutsi officials they were guarding to Interhamwe death-squads. If American soldiers were ever to behave like this - and in the unlikely event that they were not subjected to US military discipline for such appalling behaviour - an ICC investigation would hardly seem an affront to American prestige. But on that sticking point, the US decided to reject the entire exercise. Its rank hypocrisy in wanting "universal" justice for everyone except Americans is apparent to all other nations, and will continue to damage US credibility in the human rights field as the ICC takes shape.
The tragedy is that its objection is so unnecessary. The US has shown no recent reluctance to prosecute soldier-criminals. It has even set up an inquiry into allegations that its marines committed war crimes as long ago as 1950, in the South Korean hamlet of No Gun Ri. The US has nothing to fear from international criminal justice, as it has now been developed with all the safeguards of the Rome Treaty. It has, on the contrary, very much to gain by rejoining a movement to which it has in the past given so much in terms of idealism and practical support. If the ABA can re-assure the isolationist voices in Congress, American lawyers will find themselves warmly welcomed, as comrades rather than visitors, in the quest for global justice.
Geoffrey Robertson QC is the author of Crimes Against Humanity - the Struggle for Global Justice, published this month as a Penguin paperback.
© Guardian Newspapers Limited 2000
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