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Program 9832
August 11, 1998


Lloyd Axworthy, Foreign Minister, Canada

Emma Bonino, member, European Commission

Cherif Bassiouni, Drafting Comittee Chair, UN Conference on International Criminal Court

Benjamin Ferencz, Chief Prosecutor, Nuremberg War Crimes Tribunal

Jerry Fowler, representative, Lawyers Committee for Human Rights

Philippe Kirsch, Chair, UN Conference on an International Criminal Court

Dilip Lahiri, Indian Ambassador to the UN Conference on an International Criminal Court

Don MacKay, New Zealand Ambassador to the UN Conference on an International Criminal Court

Jelana Pejic, representative, Lawyers Committee for Human Rights

Mona Rishmawi, representative, International Commission of Jurists

David Scheffer, US Ambassador-at-Large for War Crimes Issues

John Washburn, Cochair, Washington Working Group on International Criminal Court

This text has been professionally transcribed. However, for timely distribution, it has not been edited or proofread against the tape.

GIOVANNI CONSO: [via a translator] To repeat; would delegations in favor of the adoption of the draft statute press the green button. Would delegations against the adoption of the draft press the red button. Would delegations abstaining press the yellow button. [sounds of cheers and clapping as the favorable outcome of the vote comes in]

KEITH PORTER: At 10:49 p.m., Friday, July 17, spontaneous applause swept the Plenary Hall in the United Nations building in Rome. Delegates to this conference have just realized that they have voted by an overwhelming margin to approve a treaty creating the world’s first international criminal court. We’ll go behind the scenes in Rome, this week on Common Ground.

COSO: [via a translator] Thank you. The result of the voting is as follows: in favor, 120; against, 7; abstentions, 21. The statute is adopted.

PORTER: Do you feel like you’re at something historic today?

PHILIPPE KIRSCH: I certainly did. And I think everyone in the room had the same feeling.

JELENA PEJIC: The result that we have today, the final draft statute, is the result of U.S. pressure, French intransigence, and British maneuvering. That’s what it boils down to.

DAVID SCHEFFER: The United States is second to none in acknowledging the importance of universality of jurisdiction in its proper context and scope of operation, for the effective vindication of international law. But we must emphasize that this treaty takes the principal of universal jurisdiction far outside any acceptable scope or context.

PORTER: Common Ground is a program on world affairs and the people who shape events. It’s produced by the Stanley Foundation. I’m Keith Porter. Canadian Philippe Kirsch served as Chairman of the Conference.

KIRSCH: I was quite moved by the extraordinary enthusiasm the delegations showed when the decision was finally made. I never attended any international conference with that degree of emotion and commitment to an institution that really should be there for generations and protect the victims of the future.

PORTER: Do you feel like you’re at something historic today?

KIRSCH: I certainly did. And I think everyone in the room had the same feeling.

PORTER: An international criminal court has been under discussion for decades. Since the start of the United Nations there’s been the International Court of Justice, better known as the World Court, to resolve disputes among nations. But there’s never been a permanent court to try individuals charged with war crimes, crimes against humanity, and genocide. The closest we’ve come in the past are the Nuremberg and Tokyo trials after World War II, and the current temporary war crimes tribunals for Rwanda and Yugoslavia. So, delegates from 161 countries came to Rome for 5 weeks to hammer out a treaty which would allow these nations to create this new court.

CHERIF BASSIOUNI: ….of the working group that article 8 will deal with non-retroactivity, razione temporares, and will deal specifically with the crimes. This article deals with individual criminal responsibility.

PORTER: Cherif Bassiouni, Chairman of the Conference’s Drafting Committee, led many dry conference sessions like this.

BASSIOUNI: The explanatory note on page 4 is merely to indicate the article x, which was received by the….

PORTER: But behind these somber moments was an often dramatic battle.

BASSIOUNI: We have found a little omission on the Spanish text, on the title….

PEJIC: The result that we have today, the final draft statute, is the result of U.S. pressure, French intransigence, and British maneuvering. That’s what it boils down to.

PORTER: Jelena Pejic was in Rome representing the Lawyers Committee for Human Rights.

PEJIC: The United States pulled out all the stops it could in pressuring both allies and smaller countries in order to achieve the result that it desired. So far that result has not been achieved. The opt-out regime are the result of French intransigence, because it was clear that in an attempt to prevent its peacekeepers or service people from ever coming before this court’s jurisdiction for war crimes, the French insisted on provision that would de facto exempt French citizens and therefore all other citizens, from the reach of this court. And it is the result of British mediating efforts that I would say, in the view of my organization, the Lawyers Committee for Human Rights, that we have a statute that we are not happy with, but will most probably have to live with and have to do our best to improve in the time that comes.

PORTER: Pejic just mentioned two important items of contention at this conference. One, the possibility for nations to opt out of certain parts of the treaty; and two, limits on the Court’s jurisdiction. Jerry Fowler, also from the Lawyers Committee for Human Rights, explains.

JERRY FOWLER: We think in general that this Court creates a framework that will promote international justice for future generations. But there are a couple of provisions of it that are going to compromise international justice for out generation. And one is giving states the right to opt out of jurisdiction for war crimes for seven years. It lets states sign up and say that “we’re joining the Court but we’re not going to accept jurisdiction over war crimes.” We think that that was a compromise that was made at the last minute in order to reportedly get the French to accept the agreement. But it was a serious compromise that is going to limit the Court’s effectiveness in its early years.

The second compromise that was made in the final hours is dropping a provision that would have allowed the Court to exercise jurisdiction whenever a state that has custody of a suspect has ratified the treaty. And what that means is that even if a dictator or a war criminal were from a state that has not ratified the treaty, if he were to travel overseas he would be subject to arrest and being handed over to the Tribunal. By eliminating that provision you’ve essentially ensured that dictators can take their vacations on the Riviera without fear of being arrested and turned over to international justice. And certainly in the probably, first decade or so of this Court, as we’re waiting for states to join on—it’s going to be a long process to get the whole world joined onto this Court—that is going to give a lot of scope for dictators and tyrants to commit crimes inside their own countries and then freely travel abroad without fear of being brought to justice.

BENJAMIN FERENCZ: My name is Benjamin Ferencz. I was a prosecutor at the Nuremberg War Crimes trials and have been concerned with trying to create an international criminal court since that time. That means for over 50 years I’ve dedicated most of my life to trying to substitute the rule of law for the law of force. I think it’s absurd to suggest that before a criminal can be tried you must obtain the consent of the nation to which, of which he happens to be a national or which happened to capture him or where he happens to be. If a man is a criminal he should be brought to court and tried. And it should be up to the prosecutor to decide whether he has a credible case to prove him guilty beyond a reasonable doubt. If he can do that he should be tried. Anything else is an interference with his function. And makes his difficult job even more difficult. And it’s just a means of protecting criminals. And I don’t think that’s what the purpose of the court is.

SCHEFFER: Mr. Chairman, it is essential that this distinguished audience know why we are taking this extraordinary action. Our position on universality of jurisdiction has been widely misunderstood.

PORTER: The United States led the movement for sharply limiting the jurisdiction of this new international criminal court, and preserving the sovereign rights of nations. Ambassador David Scheffer represented the United States at the Rome conference.

SCHEFFER: As a supporter of the Geneva Conventions with their system of grave breaches and the obligations and the obligations of state parties to prosecute or to extradite, the United States is second to none in acknowledging the importance of universality of jurisdiction in its proper context and scope of operation, for the effective vindication of international law. But we must emphasize that this treaty takes the principal of universal jurisdiction far outside any acceptable scope or context. The crimes included in the treaty in fact go far beyond grave breaches of the Geneva Conventions and include crimes for which it is not even arguable that universal jurisdiction exists in any context. Even more fundamentally, one cannot through this treaty create and impose the jurisdiction of an international court on states which do not join. If states wish, through this treaty’s provisions, to create an international criminal court to prosecute offenders they can do that. But only for the parties. The Vienna Convention on the Law of Treaties articulates the elementary rule that treaties cannot create obligations for states that are not parties. It goes without saying that there is no customary law that confers such power on international organizations, including international courts.

PORTER: On the other side of the argument, many nations and non-governmental organizations were concerned that any limit on jurisdiction would allow some suspects to slip away.

MONA RISHMAWI: The hope was that when the warlords in Somalia leave Somalia and go to their neighboring countries of Kenya, Egypt, and any of these countries, something could be done. Now, this cannot be done.

PORTER: Mona Rishmawi is from the International Commission of Jurists.

RISHMAWI: Now, with the requirement of a territorial state to be a party to the conflict, this cannot be done. It means that the world now is a safe haven for all those who commit war crimes, crimes against humanity and genocide. That’s the message that we are sending. It’s a very serious message. It’s a very disturbing message, and this is why you see the tone that some of us are speaking with here today.

PORTER: In the final document either the country where an alleged crime was committed or the home country of the accused criminal must give consent before the Court can act. Another point of negotiation in this treaty was the type of sentences the Court will be able to deliver. The death penalty, for example, was ruled out early on. Again, Jerry Fowler.

FOWLER: The maximum that an individual could get is a term of life imprisonment. And that is for those cases when it’s justified by the extreme gravity of the crime. And I think looking back in history if you’re not going to have the death penalty, which this statute does not, the crimes we’re talking about—genocide, crimes against humanity—in many cases are so grave and so atrocious that life imprisonment is the appropriate penalty. For situations in which life imprisonment is not justified by the extreme gravity of the crime, there will be prison sentences of a specified number of years, up to a maximum of 30. After a person has served 2/3 of a sentence, or in the case of a life sentence, has served 25 years, the Court must undertake a review of the sentence to determine whether it should be reduced. There can’t be a review before that time.

PORTER: So that’s a very serious, I mean that’s a serious sentence. I mean, do you agree that that’s, that that is a sort of a grave sentence the Court could give out?

FOWLER: Yes. I mean, I think that the sentences are high here. As they should be. I mean, we’re talking about the most serious crimes that people can commit.

PORTER: Delegates also differed over the rule the UN Security Council will play with this Court. Remember, that the U.S., China, Russia, Britain, and France are permanent members of the Council. And each has the power to veto any item considered by the Security Council.

PEJIC: With respect to the Security Council issue, the way it’s resolved in the statute, the Security Council will be able to trigger the Court’s jurisdiction. In other words, bring cases before the Court.

PORTER: This again is Jelena Pejic.

PEJIC: In those situations the state consent regime will not apply and the Court will be able to count on the Security Council’s enforcement capacity. Finally, the Singapore proposal was adopted with respect to the Council’s power to block the Court. In other words, the ICC will be able to proceed with an investigation or prosecution, unless requested not to do so by the Security Council, for a period of 12 months. That period will be renewable. Non-governmental organizations and certainly my organization, the Lawyers Committee, is unhappy that that provision is in. And we are even more unhappy that the time limit during which the Council can suspend proceedings is renewable, indefinite. And finally the provisions to preserve evidence by the Court when there has been a delay of ICC prosecutions has not been provided for. The Security Council will be able to trigger investigations.

FOWLER: It will be similar to the process that they followed in setting up the ad hoc tribunals in Bosnia and Rwanda.

PORTER: Again, Jerry Fowler.

FOWLER: If the Security Council feels that a future matter needs to be dealt with by the Court then they can trigger the Court’s jurisdiction. A second way in which the Security Council is involved is when the Court begins to take up a matter that is also being dealt with by the Security Council. The Security Council could pass a resolution asking the Court to defer its proceedings for 12 months. And that’s to deal with the situation where perhaps the Security Council is trying to maintain international peace and security and it felt that having judicial proceedings going along at the same time would complicate the efforts that the Security Council is making.

DILIP LAHIRI: We are, quite frankly, much, very greatly concerned about the proposal to provide the U.N. Security Council with a referral role.

PORTER: Many nations were reluctant to give the Security Council even more power. Dilip Lahiri was the Ambassador of India to this conference.

LAHIRI: Well, let me put it this way. I don’t think anybody in this conference has yet claimed that this statute that we are negotiating at Rome can add to or subtract from the powers of the UN Security Council, which are derived from the UN Charter. Nothing that we can do can add to it or subtract from it. Now, if that is a generally accepted position, I would have felt that if countries wanted to adopt a statute without a vote, as a part of a general agreement, they should find it rather easy to accommodate, for example the position of a country like India, which finds it totally offensive to have a body in which five countries have certain powers. It’s one thing to have it under the UN Charter. But for me, voluntarily to sign an agreement where I’m saying that these five countries are going to have a consent regime and all others will be bound by what they say, seems to me to be a fundamentally offensive position.

PORTER: We’re talking in this edition of Common Ground about the new treaty which would establish an international criminal court. Printed transcripts and audio cassettes of this program are available. Listen at the end of the broadcast for details. Common Ground is a service of the Stanley Foundation, a non-profit, non-partisan organization that conducts a wide range of programs meant to provoke thought and encourage dialogue on world affairs.

SCHEFFER: The United States has been a strong proponent of an appropriate court that it can back with its diplomatic, financial and other resources. There can be no question in anyone’s mind how significant such support could be. Because the United States has demonstrated repeatedly its resolve to pursue international justice.

PORTER: The United States played a central role in the international criminal court treaty negotiations. But the U.S. delegation was often seen by others as trying to seriously weaken or even undermine the new court. This is American Ambassador David Scheffer.

SCHEFFER: No other country has shown as much support for the international criminal tribunals for the former Yugoslavia and Rwanda as the United States of America. We will continue to support these important institutions. We also will continue to make every effort to bring all perpetrators of genocide, crimes against humanity and war crimes, to justice. We have been hoping, as a potential state party of an international criminal court, that the full weight of the United States could be used to support its critical investigations and prosecutions in the future. At this conference the U.S. delegation has engaged in the most intensive discussions with other delegates in order to achieve our common objectives. We have sought to find means to achieve fundamental U.S. requirements for the Court, and also the objectives of other governments. In some instances our efforts have proven very useful in arriving at constructive language with broad appeal.

But we stand on the eve of the conference’s conclusion without having found a solution. We fear that governments whose citizens make up at least 2/3 of the world’s population will find the emerging text of the treaty unacceptable. The world desperately needs this mechanism for international justice but it must be a community, not a club. It will need the cooperation of governments to operate effectively and it will not achieve its objectives by ignoring the legitimate concerns of many governments. The United States and other countries have critical responsibilities around the world that are crucial to the protection of civilian populations. A scheme that ignores these responsibilities is not going to serve the vital interests of the Court.

PORTER: The U.S. was particularly concerned that the international criminal court would allow frivolous legal action to be taken against U.S. soldiers serving in peace keeping operations overseas. But the Canadian Foreign Minister, Lloyd Axworthy, took a different view on the dangers facing peacekeepers.

LLOYD AXWORTHY: This is a much better way of protecting troops abroad than you have right now. We firmly believe that because we are peacekeepers. I mean, we have been in probably more peacekeeping missions than virtually any other country in the world, from 19—it was invented in sort of 1956 by Canadians in Suez. So we know what it’s about. And we know how much risk overseas missions can take. So we believe the Court is one way of providing a degree of security in that area.

FERENCZ: There is no threat to the United States or to any of its soldiers by what we’re trying to do here.

PORTER: Again, Nuremberg prosecutor Benjamin Ferencz.

FERENCZ: The Security Council has protected the United States from being solely abused by anybody and the principle of complementarity assures that no American soldier would be tried for crimes which are a violation of the rules of law. If the United States wants a free hand to commit aggression, they shouldn’t have that free hand. No nation should have that free hand. That’s what we stood for at Nuremberg. That’s what we died for before Nuremberg. And I was a soldier who fought in every campaign in Europe. So I hope the United States will come to its senses and go back to the leadership shown by Woodrow Wilson, by Franklin Roosevelt, by John F. Kennedy, and live up to the principles espoused by President Clinton and Secretary of State Albright. They have not done that yet. Perhaps there’s still a chance.

PORTER: In the end, the United States and six other nations voted “No” on the treaty. One-hundred-and-twenty voted yes. Now 60 nations must sign and ratify the document before the Court comes into existence. The U.S. has said it will actively oppose the new Court.

REPORTER: You spoke about bad losers. Could you name them?

EMMA BONINO: Yeah, I think there is strange coalition of bad losers, which are United States, plus Iraq, Libya, Sudan, China…

PORTER: Emma Bonino is a member of the European Commission.

BONINO: Well, it’s a very strange coalition and I’m sorry for some of them that are one of the major democracies world-wide.

PORTER: Can this Court survive without the United States?

BONINO: Well, I think that it will and there is nothing more volatile than politics. So it means possibly that the United States can join, possibly later on. I understand that they have decided to join the land mines treaty in 2006. Hopefully they will do the same for this treaty. But let me express again that I’m really very sorry for them.

PORTER: In your experience do you believe that a court like this could survive without U.S. participation.

BASSIOUNI: I think U.S. participation is extremely important and I don’t really see any true difficulties for the U.S. to join it.

PORTER: This again is Cherif Bassiouni.

BASSIOUNI: Obviously people can take extreme ideological positions and hard-line positions, but on its merits this court is in the best interests of the United States and I don’t see how anybody in good faith and in good judgment can oppose it.

PORTER: Emma Bonino just used the word bad losers to describe the United States and a handful of other countries. Would you use that term?

BASSIOUNI: I don’t think so. I don’t think the United States is a loser. I think the United States made tremendous gains in getting its points of view across and its positions taken into account. The fact that it didn’t win 100% doesn’t mean that most of the gains that they had are to be dismissed. And I think that a great deal of credit goes to the U.S. delegation which has been trying to get the Court established, but also to take into account a variety of not only policy but political considerations. I think the administration here was negotiating with a view on the Senate and on the conservative members of the Senate. And of course that makes it very difficult for the U.S. to carry out in that way.

DON MACKAY: My government has said before that it’s extremely committed to an international court.

PORTER: Don MacKay is the Ambassador from New Zealand.

MACKAY: So they will look at this particular text, they’ll look at the issues that surround it. And will take that decision.

PORTER: Sixty seems like a high number for ratification. Do you agree with that or do you think not?

MACKAY: Well, I think it means that it will be a number of years before the Convention actually comes into force and the Court is actually established. But if you look at recent conventions like the Chemical Weapons Convention, the Law of the Sea Convention, they also have operated on the basis of 60 ratification. So in terms of recent practice it is not excessively high. Frankly I would have liked to have seen this rather lower. Because it would be good to get the Court underway sooner rather than later. But like all of these things, this was a compromise result and I think it wasn’t a bad sort of compromise in the end.

PORTER: Our final word is from John Washburn, a former UN official. He’s now Cochairman of a non-governmental organization called the Washington Working Group on the International Criminal Court.

JOHN WASHBURN: This is a constitutional convention that’s taking place here. This is the creation of a major unit of governance. Not government but governance at the international level. This reminds me very sharply of San Francisco in 1945 or Philadelphia in 1789. I find I have the founding fathers very much on my mind all the time. The Federalist Papers would be a good guide to understanding the atmosphere and how it feels. I think particularly of Benjamin Franklin coming out on that last hot July morning when they’d been up all night completing the Constitution and an elderly lady approaches him and says “Well Mr. Franklin, what have you given us? A monarchy or a republic?” And he said, “A republic, Madam, if you can keep it.” And it’s going to be up to all of us now to keep this court.

PORTER: For Common Ground, I’m Keith Porter.

In the weeks to come we’ll air two more programs on the International Criminal Court. One will cover the groundbreaking ways this court will be able to prosecute mass rape, forced pregnancy, sexual slavery, and other crimes against women. Later, we’ll examine the extraordinary role non-governmental organizations and civil society played in creating this new court. Please join us for those broadcasts.

Our theme music was created by B.J. Leiderman. Common Ground was produced and funded by the Stanley Foundation.

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