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At a recent Nixon Center luncheon, two prominent legal experts disagreed sharply over the merits of the International Criminal Court (ICC). The panel included David B. Rivkin, a partner at the law firm of Baker & Hostetler and an expert on international law; and David J. Scheffer, currently the Senior Vice President for the United Nations Association of the United States of America, and a former Ambassador at Large for War Crimes during the Clinton Administration. In the latter capacity, Amb. Scheffer led U.S. negotiations on the treaty. Nixon Center Board member Lionel H. Olmer a former Under Secretary of Commerce for International Trade and long-time trustee of the International Rescue Commitee, presided over the discussion.

Rivkin began by arguing that "International justice is a revolutionary concept . . . it is a fundamental and highly destructive break from past practice that has worked pretty well." He also warned that "The creation of a permanent ICC presents real and immediate challenges for U.S. policymakers and in my view would pose problems for the international community." In his view, the ICC is built around a defective system with inadequate control mechanisms. Accordingly, Rivkin saw the ICC as contrary to U.S. interests, and urged the Bush Administration to reject the treaty in its entirety.

Rivkin disagreed with American supporters of the ICC who see the ratification of the Rome Treaty as an opportunity for the United States to work from the inside to restructure and improve the current legislation. "In my view that is emphatically not the answer," he said,"the ICC is a deeply flawed institution both in its conception and realization." For example, Rivkin pointed out, according to the most recent State Department Human Rights Report many of the countries ratifying the ICC have themselves been implicated in extrajudicial killings. He objected to an international criminal court that would include such nations because the ICC lacks proper checks, such as a UN Security Council veto power. To Rivkin this is particularly troubling because the ICC’s jurisdiction would be so broad, "The ICC would exercise the power to investigate, to prosecute . . .The ICC’s prosecutors and judges would be unelected and unaccountable for their actions."

Rivkin asserted that becoming a party to the ICC also jeopardizes U.S. interests by exposing U.S. soldiers to politically driven prosecution. The broad definition of war crimes is most alarming, he argued, because "In using U.S. troops in missions abroad it is difficult, no matter how careful you are, to have zero collateral damage." Rivkin explained that even U.S. military advisors could be prosecuted as accomplices if they were present when questionable acts were carried out by foreign forces (in their own country) outside any U.S. authority or control. Thus, Rivkin saw the current ICC as a hindrance to the ability of the U.S. armed forces to conduct vital international assistance missions.

Lastly, Rivkin criticized the ICC’s purpose. "The ICC will not deter rogue states from acting. It will deter democratic states from carrying out their policies." Moreover, while Rivkin does see a need for international arrangements to punish war crimes, he believes existing approaches are adequate. "Laws of war exist. They can and should be enforced by states, but states should have sovereignty over their own citizens." Rivkin insisted that matters be handled on a national level or, when necessary, the international community. "When states don’t act against their own citizens then there should be diplomatic and economic pressures placed on them by other states," concluded Rivkin.

As a former Head of the U.S. Delegation to the UN Preparatory Commission for the International Court, Amb. Scheffer negotiated for the U.S. at the ICC. Scheffer explained that the Clinton negotiating team strongly endorsed becoming part of the International Criminal Court because "It was a dialogue to arrive at how we deal, on a more permanent basis, with the kinds of ad hoc tribunals that have suddenly been created by the Security Council in a more efficient, cost effective, and consistent way in the future, both in terms of being able to address issues of accountability, as well as having something that is much more cost effective than having to create and start from scratch each time with a new ad hoc court, new judges, new prosecutors, all of which requires an enormous amount of investment by the UN system."

Scheffer said that the idea behind the ICC was to find a common, agreed upon system, bound by treaty, that states could join rather than having an ad hoc tribunal thrust upon them by the UN Security Council.

Although the Clinton administration thought the court was a worthwhile endeavor to pursue, Scheffer continued, "We also thought that the jurisdiction of such a court needed to be limited in terms of its subject matter." Scheffer noted that the U.S. delegation was opposed to original drafts of the treaty because it lacked many key points important for American interests. He viewed a control mechanism over the process in which states could refer cases to the court as one of the most important such points. As a result, the U.S. negotiating team insisted upon giving veto power to the UN Security Council. Scheffer said that the U.S. delegation signed the treaty in November 2000, after having many of America’s original demands resolved. The Clinton Administration saw this as a means to gain leverage within the negotiating framework. "We felt we could serve U.S. interests and improve upon the ICC better by working from within."

In his analysis of the Bush Administration’s handling of the ICC, Scheffer said he was disappointed with the decision to withdraw from negotiations because he sees this as a lost opportunity; "When the United States decided not to be present, it removes the ability to protect our interests." Scheffer saw the withdrawal and the potential "unsigning," whereby the United States would formally notify the United Nations of the United States intention not to ratify the treaty and essentially remove our name from it, as contrary to U.S. interests and a move that would have several negative effects. [Rapporteur’s Note: On May 6th, 2002, the U.S. did, in fact, formally notify the United Nations that the U.S. does not intend to become a party to the Rome statute.] "There will be a perception that the United States is just walking away and we will lose a leadership role in international justice . . . and it will be a huge signal to the rest of the international community that there is a new option in signing treaties, you can walk away from them when you want."

This Program Brief was prepared by Nixon Center staff member Gregory Fedor.