ASIL Insights

Results of the Rome Conference for an International Criminal Court
By Michael P. Scharf
August 1998


At the end of the six-week Rome Diplomatic Conference for an International Criminal Court, on July 17, 1998, 120 countries (including virtually all of the United States' allies) voted in favor of the Treaty containing the Statute for an International Criminal Court. The United States joined China, Libya, Iraq, Israel, Qatar, and Yemen as the only seven countries voting in opposition to the Treaty. Twenty-one countries abstained.

On July 23, 1998, the Senate Foreign Relations Committee held hearings to determine why the United States voted against the International Criminal Court and to ascertain future U.S. policy with respect to the Court. The hearings began with statements by Senator Jesse Helms (R-North Carolina), Senator Rod Grams (R-Minnesota), Senator Dianne Feinstein (D-California), Senator John Aschroft (R-Missouri), and Senator Joseph Biden (D-Delaware). These were followed by testimony from David Scheffer, Ambassador-at-Large For War Crimes Issues; John Bolton, Senior Vice President of the American Enterprise Institute; Attorney Lee Casey; and Professor Michael Scharf (the author of this ASIL Insight).

This ASIL Insight describes the key provisions of the Statute for an International Criminal Court that emerged from Rome, analyzes why the United States voted against the Treaty, and summarizes the highlights of the Hearings before the Senate on this issue.

Rationale for a Permanent International Criminal Court

In his book, Death by Government, Professor Rudi Rummel said that 170 million civilians have been victims of war crimes, crimes against humanity, and genocide during the 20th Century. We have lived in a golden age of impunity, where a person stands a much better chance of being tried for taking a single life than for killing ten thousand or a million. Adolf Hitler demonstrated the price we pay for inaction. After the Second World War, the international community established the Nuremberg and Tokyo Tribunals to prosecute the major Nazi and Japanese war criminals and said "Never Again!"-meaning that it would never again sit idly by while crimes against humanity were committed. Fifty years ago, the UN began work on the project to establish a permanent international criminal court.

But because of the cold war, the pledge of "never again" quickly became the reality of "again and again" as the world community failed to take action to bring those responsible to justice for atrocities in such places as Cambodia, Argentina, East Timor, Uganda, Iraq and el Salvador. Radovan Karadzic and Ratko Mladic were encouraged by the world's failure to bring Pol Pot, Idi Amin, and Saddam Hussein to justice for their international crimes.

Then, in the summer of 1992, systematic war crimes returned to Europe just when the UN Security Council was freed of its cold war paralysis. Against great odds, a modern day Nuremberg Tribunal was established in The Hague to prosecute those responsible for atrocities in the former Yugoslavia. A year later, in the small African country of Rwanda, members of the ruling Hutu tribe massacred 800,000 members of the Tutsi tribe. In the aftermath of the bloodshed, Rwanda's Prime Minister-designate (a Tutsi) pressed the Security Council: "Is it because we're Africans that a similar court has not been set up for the Rwanda genocide?" The Council responded by establishing a second international war crimes Tribunal in Arusha, Tanzania.

With the creation of the Yugoslavia and Rwanda Tribunals, there was hope that ad hoc tribunals would be set up for crimes against humanity elsewhere in the world. Genocidal leaders and their followers would have reason to think twice before committing atrocities. But then something known in government circles as "Tribunal Fatigue" set in. The process of reaching agreement on the tribunal's statute, electing judges, selecting a prosecutor and staff, negotiating headquarters agreements and judicial assistance pacts, and appropriating funds turned out to be too time consuming and exhausting for the members of the Security Council. It became apparent that Rwanda would be the last ad hoc tribunal. A permanent international criminal court was hailed as the solution to the problems that afflict the ad hoc approach. On the eve of the Rome Conference, both the U.S. Congress and the Clinton Administration indicated that they were in favor of such a tribunal. As Ambassador Scheffer told the Senate Foreign Relations Committee on July 23: "Our experience with the establishment and operation of the International Criminal Tribunals for the former Yugoslavia and Rwanda had convinced us of the merit of creating a permanent court that could be more quickly available for investigations and prosecutions and more cost-efficient in its operation."

Why the U.S. Voted "No"

Rome represented a tension between the United States, which sought a Security Council-controlled Court, and most of the other countries of the world which felt no country's citizens who are accused of war crimes or genocide should be exempt from the jurisdiction of a permanent international criminal court. The justification for the American position was that, as the world's greatest military and economic power, more than any other country the United States is expected to intervene to halt humanitarian catastrophes around the world. The United States' unique position renders U.S. personnel uniquely vulnerable to the potential jurisdiction of an international criminal court. In sum, the Administration feared that an independent ICC Prosecutor might single out U.S. military personnel and officials.

The rest of the world was in fact somewhat sympathetic to the United States' concerns. What emerged from Rome was a Court with a two-track system of jurisdiction. Track One would constitute situations referred to the Court by the Security Council. This track would create binding obligations on all states to comply with orders for evidence or the surrender of indicted persons under Chapter VII of the UN Charter. This track would be enforced by Security Council imposed embargoes, the freezing of assets of leaders and their supporters, and/or by authorizing the use of force. It is this track that the United States favored, and would be likely to utilize in the event of a future Bosnia or Rwanda. The second track would constitute situations referred to the Court by individual countries or the ICC Prosecutor. This track would have no built in process for enforcement, but rather would rely on the good-faith cooperation of the Parties to the Court's statute. Thus, it was widely understood that the real power was in the first track. But the United States still demanded protection from the second track of the Court's jurisdiction. In order to address U.S. concerns, the following protective mechanisms were incorporated into the Court's Statute at the urging of the United States:

First, the Court's jurisdiction under the second track would be based on a concept known as "complementarity" which was defined as meaning the Court would be a last resort which comes into play only when domestic authorities are unable or unwilling to prosecute. At the insistence of the United States, the delegates at Rome added teeth to the concept of complementarity by providing in Article 18 of the Court's Statute that the Prosecutor has to notify states with a prosecutive interest in a case of his/her intention to commence an investigation. If, within one month of notification, such a state informs the Court that it is investigating the matter, the Prosecutor must defer to the State's investigation, unless it can convince the Pre-Trial Chamber that the investigation is a sham. The decision of the Pre-Trial Chamber is subject to interlocutory appeal to the Appeals Chamber.

Second, Article 8 of the Court's Statute specifies that the Court would have jurisdiction only over "serious" war crimes that represent a "policy or plan." Thus, random acts of personnel involved in a foreign peacekeeping operation would not be subject to the Court's jurisdiction.

Third, Article 15 of the Court's Statute guards against spurious complaints by the ICC prosecutor by requiring the approval of a three-judge pre-trial chamber before the prosecution can launch an investigation. And the decision of the chamber is subject to interlocutory appeal to the Appeals Chamber.

Fourth, Article 16 of the Statute allows the Security Council to affirmatively vote to postpone an investigation or case for up to twelve months, on a renewable basis. While this does not amount to the individual veto the United States had sought, this does give the United States and the other members of the Security Council a collective control over the Court, if no permanent member vetos the resolution calling for postponement.

These protections proved sufficient for other major powers including the United Kingdom, France and Russia, which voted in favor of the Treaty. But without what would amount to an iron-clad veto of jurisdiction over U.S. personnel and officials, the United States felt compelled to vote against the Statute.

As Ambassador Scheffer explained to the Senate Foreign Relations Committee: "the U.S. delegation certainly reduced exposure to unwarranted prosecutions by the international court through our successful efforts to build into the treaty a range of safeguards that will benefit not only us but also our friends and allies." But Scheffer went on to say that "serious risks remain because of the document's provisions on jurisdiction," which he explained as follows:
    "While we successfully defeated initiatives to empower the court with universal jurisdiction, a form of jurisdiction over non-party states was adopted by the conference despite our strenuous objections. In particular, the treaty specifies that, as a precondition to the jurisdiction of the court over a crime, either the state of territory where the crime was committed or the state of nationality of the perpetrator of the crime must be a party to the treaty or have granted its voluntary consent to the jurisdiction of the court. We sought an amendment to the text that would have required both of these countries to be party to the treaties or, at a minimum, would have required that only the consent of the state of nationality of the perpetrator be obtained before the court could exercise jurisdiction. We asked for a vote on our proposal, but a motion to take no action was overwhelmingly carried by the vote of participating governments in the conference. ... Our position is clear: Official actions of a non-party state should not be subject to the court's jurisdiction if that country does not join the treaty, except by means of Security Council action under the U.N. Charter. ... The United States has long supported the right of the Security Council to refer situations to the court with mandatory effect, meaning that any rogue state could not deny the court's jurisdiction under any circumstances. We believe this is the only way, under international law and the U.N. Charter, to impose the court's jurisdiction on a non-party state."
In a statement submitted for the record in conjunction with the Senate Foreign Relations Committee's hearing, Richard Dicker of Human Rights Watch responded to Scheffer's argument as follows:
    "The claim that the statute is "overreaching" in that it purports to bind non-States Parties through the exercise of jurisdiction over their nationals is a gross mischaracterization. To begin with, it does not "bind" non-States Parties or impose upon them any novel obligations under international law. What it does do, is permit the ICC to exercise jurisdiction over the nationals of non-States Parties where there is a reasonable basis to believe they have committed the most serious international crimes. There is nothing novel about such a result. The core crimes in the ICC treaty are crimes of universal jurisdiction-that is, they are so universally condemned, that any nation in the world has the authority to exercise jurisdiction over suspects and perpetrators, without the consent of that individual's state of nationality.

    Nor is there anything unusual about the conferral of jurisdiction over nationals of non-State Parties through the mechanism of treaty law. The United States is party to a dozen anti-terrorism treaties that provide universal jurisdiction of these crimes, and empower States Parties to investigate and prosecute perpetrators of any nationality found within their territory. The United States has exercised jurisdiction over foreigners on the basis of such treaties, without the consent of their state of nationality [and even where the State of nationality was not Party to the Treaty]."

Where Will We Go From Here?

During the Hearings before the Senate Foreign Relations Committee, Senator Helms asked Ambassador Scheffer about the accuracy of news reports that Secretary of Defense Cohen had threatened to withdraw U.S. forces from bases in the territory of our allies if they did not support the U.S. proposal for limiting the International Criminal Court's jurisdiction. Scheffer responded that the possibility of such consequences was indeed communicated to several countries in the course of the negotiations. Senator Helms then suggested that the United States announce that it will make good that threat with respect to any country that ratifies the International Criminal Court Treaty. He further urged the Administration to take the following responses to the effort to establish the International Criminal Court: First, the U.S. must never vote in the Security Council to refer a matter to the Court's jurisdiction. Second, the U.S. must block any organization in which it is a member from providing any funding to the International Criminal Court. Third, the U.S. must renegotiate its Status of Forces Agreements and Extradition Treaties to prohibit our treaty partners from surrendering U.S. nationals to the International Criminal Court. Finally, the U.S. must provide no U.S. soldiers to any Regional or International Peacekeeping operation where there is any possibility that they will come under the jurisdiction of the International Criminal Court.

Ambassador Scheffer was non-committal as to the adoption of Senator Helms' proposal, saying only that "the Administration hopes that in the years ahead other governments will recognize the benefits of potential American participation in the Rome treaty and correct the flawed provisions in the treaty." In the meantime, he added, "more ad hoc judicial mechanisms will need to be considered." Mr. Bolton and Mr. Casey argued in favor of Senator Helms' proposed response. Professor Scharf testified that the United States cannot make such threats without being ready to implement them. Further, notwithstanding Senator Helms' hopes, such threats were unlikely to prevent the International Criminal Court from becoming a reality since the Treaty comes into force after 60 countries ratify it, and there are nearly twice that many "like minded states" strongly in favor of the Court.

Professor Scharf further argued that the U.S. could better protect its interests by signing the International Criminal Court statute than by a futile attempt to prevent other countries from ratifying the Treaty:
" Within five years the world will have a permanent international criminal court even without U.S. support. As a non-party, the U.S. will not be bound to cooperate with the Court. But this does not guarantee complete immunity from the Court. It is important to understand that U.S. citizens, soldiers, and officials could still be indicted by the Court and even arrested and surrendered to the Court while they are present in a foreign country which happens to be a party to the Court's Statute. Moreover, by failing to sign the Statute, the U.S. will be prevented from participating in the preparatory committee which will draft the Court's Rules of Procedure and further define the elements of the crimes within the Court's jurisdiction. Also, by failing to sign the Statute, the U.S. will be prevented from nominating a candidate for the Court's bench, participating in the selection of the Court's Prosecutor and judges, or voting on its funding."

Ambassador Scheffer's testimony suggested that the U.S. response to the International Criminal Court might parallel its efforts to reform the 1982 Law of the Sea Convention. The United States refused to sign that treaty until amendments were adopted concerning its seabed-mining regime. In 1994, the signatories to the Law of the Sea Convention adopted an Agreement containing the revisions sought by the United States and the United States signed the treaty, which still awaits Senate advice and consent to ratification. In the interim, Scheffer indicated that the United States may be willing to pursue ad hoc judicial measures such as expanding the jurisdiction of the existing Security Council-created ad hoc war crimes tribunals.

About the author

Michael P. Scharf is Professor of Law and Director of the Center for International Law and Policy at the New England School of Law. From 1989-1993, he served as the Attorney-Adviser in the Office of the Legal Adviser of the U.S. Department of State with responsibility for the issue of a permanent international criminal court. He is the author/co-author of three books about the Yugoslavia and Rwanda Tribunals, including the Pulitzer Prize-nominated Balkan Justice (Carolina Academic Press, 1997).

Suggested Further Reading--

Internet Resources

There are several excellent web sites with information about the International Criminal Court, including those maintained by the United Nations (http://www.un.org); the NGO Coalition for an International Criminal Court (http://www.igc.apc.org/icc); the Lawyers Committee for International Justice (http://www.cij.org/); and the Institute for War and Peace Reporting (http://www.iwpr.net/index.pl?home_index.html).

Books
American Bar Association. Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia. U.S.A.: American Bar Association, 1993.
American Bar Association. Report on the Proposed Rules of Procedure and Evidence of the International Tribunal to Adjudicate War Crimes in the Former Yugoslavia. U.S.A.: American Bar Association, 1995.
Bassiouni, M. Cherif and Peter Manikas. The Law of the International Criminal Tribunal for the Former Yugoslavia, Irvington-on-Hudson, New York: Transnational Publishers, Inc., 1996.
Judicial Conference of the United States. Report of the Judicial Conference of the United States on the Feasibility of and the Relationship to the Federal Judiciary of an International Criminal Court, 1991.
Morris, Virginia and Michael P. Scharf. An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia. Irvington-on-Hudson, New York: Transnational Publishers, Inc., 1995 (2 vols).
Morris, Virginia and Michael P. Scharf. The International Criminal Tribunal for Rwanda. Irvington-on-Hudson, New York: Transnational Publishers, Inc., 1998 (2 vols).
Scharf, Michael P. Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg. Durham, North Carolina, Carolina Academic Press, 1997.

Articles
American Bar Association Task Force on an International Criminal Court, Establishment of An International Criminal Court, reprinted in
Bassiouni, M. Chief and Christopher Blakesley. "The Need for an International Criminal Court in the New International World Order." 25(2) Vanderbilt Journal of Transnational Law, 151-182, 1992.
Blakesley, Christopher L. "Obstacles to the Creation of a Permanent War Crimes Tribunal." 18 Fletcher Forum of World Affairs 77-102, 1994.
Crawford, James. "The ILC's Draft Statute for an International Criminal Tribunal." 88 American Journal of International Law 140-152, 1994.
Ferencz, Benjamin B. "An International Criminal Code and Court: Where They Stand and Where They're Going," 30(2) Columbia Journal of Transnational Law 375-399, 1992.
Paul D. Marquardt, "Law Without Borders: The Constitutionality of an International Criminal Court," 33 Colum. J. Trans. L. 74, 1995.
Judicial Conference of the United States. Report of the Judicial Conference of the United States on the Feasibility of and the Relationship to the Federal Judiciary of an International Criminal Court, 1991.
Scharf, Michael P. "The Politics of Establishing an International Criminal Court." 6 Duke Journal of Comparative and International Law, 1995.
"Symposium: Should there be an International Tribunal for Crimes Against Humanity." 6 Pace International Law Review 87-91, 1994.
Wexler, Leila Sadat. "The Proposed Permanent International Criminal Court: An Appraisal." 29 Cornell Int'l L. J. 665, 1996.
27 Int'l Law. 257, 1993.


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