Is a U.N. International Criminal Court in the U.S. National Interest?

Present: Senators Helms, Grams, Ashcroft, Feinstein, and Biden. Senator GRAMS. I apologize for being late, but I would like to call this hearing of the International Operations Subcommittee on the creation of the international court into session. I do have an opening statement; and I would like to defer to my colleague from Ĉalifornia, Senator Feinstein, and then we would hear from our panel this morning. Thank you very much.

Well, Ambassador Scheffer, I want to thank you for making the effort to come before this committee so soon after the completion of the U.N. conference in Rome. I understand that you probably have not had time to fully recover from what was by all accounts a grueling round of negotiations on the creation of the International Criminal Court.

However, given this court claims universal jurisdiction-in other words, the right to prosecute United States citizens even though the U.S. is not a party to the treaty-it is important for Congress and the American people to become apprised of the details regarding the court sooner rather than later.

Now, while I am relieved that the administration voted against the treaty in Rome, I am convinced that it is not in itself sufficient to safeguard our Nation's interests. The United States must aggressively oppose this court each step of the way, because the treaty establishing an international criminal court is not just bad, but I believe it is also dangerous.

The proposed ICC is not a part of the international system. It sits alone and above the system, and that is by design. At present international law regarding peace and security is largely whatever the Security Council says that it is. With the creation of the International Criminal Court, that will no longer be the case.

This is a great victory for the critics of the Security Council that have finally achieved their goal of diluting the power of the permanent five with the realization that their bids to increase the number of permanent members were destined to ultimately fail. They found a way to circumvent the authority of the Security Council al

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together; and ironically, by undermining the role of the Security Council, this court could have the effect of destabilizing the international arena instead of securing it.

Supporters of this court can proclaim that it will act as a deterrent against the commission of war crimes and other atrocities, but the evidence I believe points to the contrary. Saddam Hussein and the next Pol Pot will not be deterred by the indictments of the International Criminal Court any more than Bosnian Serb strongmen have been deterred by their indictments by the Yugoslav War Crimes Tribunal when they undertook their massacre.

The fact remains, the most effective deterrent is the threat of military_action; and this court is undermining the ability of the United States to do that very thing. The ICC may issue a series of indictments, but unless these war criminals are defeated and they are stripped of their power, they will never be brought to justice.

It is ironic that the same countries which look to the United States to be the global enforcer have now created a court which inhibits our ability to project force. By claiming universal jurisdiction, this treaty will force us to reconsider the deployment of our troops around the world, even though we are not a party to the treaty. At the very least, we will have to renegotiate our status of force arrangements.

In some circumstances, as our Secretary of Defense reportedly noted, we may decide that the best policy is to withdraw our troops; and when the international community comes to us requesting that American soldiers participate in a peacekeeping mission, we will have to factor into our calculations the threat of our soldiers being turned over to the ICC.

A Dutch delegate offered faint praise of this international criminal court stating-and I quote "I won't say we gave birth to a monster, but the baby has some defects." Well, I respectfully disagree, the International Criminal Court is a monster.

First, the ICC will have the final determination over whether it has jurisdiction over the case. Under a system of complementarity, the ICC can override the decision of a nation's judicial system and it can pursue a case if it decides that a State is unwilling or unable to do so. In other words, if an ICC prosecutor wanted to investigate and charge the President of the United States for a bombing raid like the one President Reagan conducted in Libya, our only way to prevent the case from going forward would be to have our own Justice Department investigate the President. If the U.S. Government then declined to prosecute, it would still be up to the judgment of the ICC whether to prosecute and pursue the case.

A decision by the International Criminal Court to prosecute Americans for military action would not be the first time that an international court tried to undercut our pursuit of our national security interests. In 1984, the World Court ordered the U.S. to respect Nicaragua's borders and to halt the mining of its harbors by the CIA. In 1986, the World Court found our country guilty of violations of international law through its support of the Contras and ordered the payment of reparation to Nicaragua. Needless to say, we ignored both of those rulings.

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Is a U.N. International Criminal Court in the U.S. National Interest ..., Том 4