The International Law Framework

This seminar is an important one. With a changing world and the challenges we face we are required to look forward with appreciation of the new complexities while remembering and understanding the lessons and experiences of history. It is clear that now more than ever defining the path we are to follow in order to stop inhumanity is an important objective we all must seek. Seminars such as this one are critical to advancing this cause in which we all have an interest.

Following World War II, the trials here in Germany, to the south of us in the city of Nuremberg, laid an important foundation setting the precedent that even the highest ranking political and military leaders are not beyond the reach of the law and that they can be brought to justice. We have built on this foundation, over the half-century since the Nuremberg trials, adding a framework of principles and institutions to secure the rule of law, to catch and hold perpetrators accountable, and to vanquish impunity.

Over the last half-century this framework has allowed for the beginning of a new age for Europe and the world. A multi-polar world has emerged creating a new world order that binds states together with delineated roles and responsibilities. In Berlin and elsewhere, as part of this new world order, liberty, prosperity, and accountability established roots and began to grow. The United States is proud of the leadership role we have played and we are committed to remaining at the forefront of assuring international peace, stability, and justice.

While we have seen the strengthening of democratic ideals around the globe, the dangers we face have transformed and spread in ways that have broadened the reach of evil and defy the imagination. No longer are we confronting solely states that exceed their bounds and abuse their might in the quest for power. Today we tackle more heinous offenders – private organizations that increasingly seek to maximize their influence through asymmetric warfare with complete disregard for life, humanity and the laws and customs of war. On September 11, 2001, this new threat came into view as al Qaeda suicide attackers in civilian guise struck civilian targets killing thousands of innocents. A new environment emerged allowing some to believe that the use of any weapon or any tactic is permissible and that the customary rules of conduct do not apply. This must be stopped and the violators must be brought to account.

It is our view that the international community more than ever must work together to prevent such warfare and disregard for international law. We must thoughtfully lay the foundation of a network that provides a web of security well into the future. A web that aggressively promotes the rule of law, punishes those who commit the most serious crimes of concern to the international community, and establishes clear lines of responsibility. A web that recognizes that states must have the primary responsibility for addressing these abuses. This responsibility must be affirmed and the acceptance of this duty must be encouraged.

The United States believes that the way to best combat these abuses is through re-enforced domestic institutions – judicial and otherwise. Preserving and protecting human freedoms is essential and should be mandated by all states. Because of the enormity of the challenge and the scope of the menace, the responsibility to prosecute is shared and distinct. To combat the inhumanity we should seek to expand our reach by asking each state to strengthen and maximize the use of its unilateral tools.

Since the Nuremberg war crimes trials, a substantial and interconnected international legal framework has developed to prevent and hold accountable violators of international law. States around the world should now draw from a developed body of legal norms to enact domestic laws to prosecute violators of international humanitarian law. States must come to understand that they have a responsibility that cannot be abdicated nor delegated as a matter of convenience.

But to assure that a web of justice is created, the international community must remain active and play a fundamental role. We must use our resources to assist in enhancing the capacity of states. With states accepting their responsibility and with assistance provided as needed by the international community, the reach of the arm of justice is expanded and the room for perpetrators to run and hide is narrowed.

We must work to shape the requisite domestic political will around the globe to ensure accountability. The members of the international community should not be afraid to exert political influence or leverage economic assistance to gain needed action. We have the responsibility to provide international focus and should look to the UN Security Council for political direction, as provided for in the UN Charter, in situations where there is a threat to or breach of international peace and security. The United States is prepared to speak out for accountability as a member of the UN Security Council and will not shy away from its responsibilities. But any international response should be particularized and focused

In setting this course, and determining the level of international involvement that is required, we should not confuse our approach and misinterpret the evolution of international accountability. International tribunals historically arose in the context of systematic crimes committed under the authority of state officials who were also were responsible for enforcing the rule of law within the society. Tribunals have been tools established to act within the world order to address abhorrent behavior that threatened world security. Prosecution in an international forum was viewed necessary for crimes where there was a lack of geographical clarity in determining jurisdiction, not because of the subject matter. For example, during World War II, recognizing the enormity of the crimes committed by the Nazi regime, the Allies in 1943 in the Moscow declaration laid down the policy that German officers and other men "will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries." The Allies also committed to an international forum for prosecuting the major war criminals whose crimes had no geographic localization. The prosecution of the major war criminals before the International Military Tribunal at Nuremberg was undertaken because there was no clear jurisdiction based on the traditional territoriality principle.

In time the use of tribunals as a particularized response to a breach of international peace and security evolved. With the events in the Former Yugoslavia, the Security Council took the unprecedented step of using its Chapter VII authority to create the International Tribunal for the Former Yugoslavia. In Resolution 827, the Security Council stated that the particular circumstances in the former Yugoslavia required an international mechanism to bring to justice the persons responsible and to secure peace and security in the Balkans where boundaries were changing and political will to prosecute was absent. This instrument was a valuable tool for the UN Security Council as the lead body responsible for maintaining world order.

In Rwanda, the UN Security Council acted to address a situation where there was an absence of the rule of law due to a lack of capacity stemming from the loss through death or exodus of the necessary national talent to address the violations. The UN Security Council acted to quickly provide a judicial infusion as a way to address an unprecedented security crisis in order to maintain order.

Today we are seeing a modification in the approach. We are seeing a recognition of sovereign role, rights, and responsibility. In Sierra Leone, the Special Court is an example of the international community and a sovereign state coming together as partners to create a credible system of accountability that will tackle abuses and ensure stability. This UN Security Council sponsored approach brings ownership to the state while providing needed international financial and legal resources. We believe that this is a model that must be supported and is a template for the future.

I cannot discuss accountability for war crimes without discussing the International Criminal Court. Let me begin by saying the idea of an international criminal court is noble. We need to ensure that abusers do not go unpunished. I applaud the Government of Germany and many of you in this room for your commitment to the cause of accountability. However, the United States believes that the Rome Treaty in its current framework is flawed and ripe for abuse. In assessing the deficiencies we have concluded that the International Criminal Court does not advance democratic principles and operates outside the well-established boundaries of international responses to breaches of international peace and security. The ICC undermines the role of the United Nations Security Council of maintaining international peace and security and improperly empowers three individuals, the ICC prosecutor with the support of two judges, to make decisions that potentially affect international security and the fate of conflicts. The ICC will not have the benefit of the essential exchange and debate that takes place at the United Nations and there is a serious risk that the court will operate in a vacuum.

The court finds its birth in an environment where many seek to steer credible institutions in unhelpful directions. And as a body that is unchecked and operates in a politically charged environment, the aims that the court stands for are at risk. It is our view that this is not only dangerous but that a court that operates outside of the international order – an order that has been systematically constructed over the past half century since the Nuremberg war crimes trials – risks undermining this framework and the international peace and security it helps protect.

Allow me to address an issue that has garnered much attention within the past few weeks: peacekeeping operations. Let me begin by stating that the United States provides vital support to peacekeeping operations and seeks to maintain their effectiveness. Peacekeepers are sent to locations where the immediate powers of the particular region may be unable to resolve a conflict. This environment is often highly volatile and the differences that created the conflict are often deeply rooted. Sending troops into this arena and in harm’s way is not an easy decision for any country to make. Adding to this calculus the risk of politicized prosecutions makes the deployment of troops even more difficult. We do not want to see a chilling effect on international peace missions at a time when the need for a wide range of peacekeeping capabilities could not be more crucial. As with all peacekeeping operations where agreements are reached with the receiving state, we seek an understanding – drawing on the Rome treaty itself – whereby the UN Security Council would request the ICC to defer cases involving UN-established or authorized missions.

In addressing this issue we ask for intellectual honesty. Protection for peacekeepers or forces posted abroad from prosecution outside their home countries is routinely granted both in bilateral agreements and in the UN’s practice. It is done in the bilateral context daily with Status of Forces agreements between states. It is negotiated in multilateral contexts, as in the Dayton Accords and UN Status of Mission Agreements. The UN Secretariat recognized it when creating the Special Court for Sierra Leone where peacekeepers have been exempted from prosecution by the Special Court, leaving the responsibility to the states and the UN Security Council. And most recently it was granted with the Military Technical Agreement between the British-led International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan which states that personnel "may not be surrendered to, or otherwise transferred to the custody of, an international tribunal or any other entity or State without the express consent of the contributing nation."

It is perplexing that states party to the Rome treaty can negotiate such exemptions for their forces – or as in the case of one EU member use Article 124 of the treaty to provide a seven-year blanket exemption for war crimes – and then argue against even the most moderate protections for peacekeepers from non-party states that have not assented to the jurisdiction of the ICC.

In the existing framework of the international community every organization has restrictions on its operations and must coexist with established institutions that are parts of a larger effort to secure peace, security and the rule of law around the world. The ICC should not be an exception. We do not advocate that such individuals, including peacekeepers, should be immune from any prosecution. The responsibility for pursuing accountability should remain with the sending state and/or the UN Security Council, which is the body that approved the force and is seized with the force’s deployment. This neither undermines the court nor prevents accountability. It is consistent with the framework of the ICC which recognizes both the need to respect the obligations of states under international law and agreements with respect to immunities, and the need to defer to requests from the UN Security Council to not commence or proceed with investigations or prosecutions.

It is not unusual for particular groups or professions to have special protections in order to allow them to perform duties that are expected of them by society. Doctors, priests, psychologists, and lawyers have a special, confidential relationship with their clients that is recognized by law. Similarly, diplomats have a special status to allow full and frank dialogue between governments. As noted in the Preamble of the Vienna Convention on Diplomatic Relations, the privileges and immunities for diplomats are meant to "ensure the efficient performance of the functions of diplomatic missions as representing States." Other professions are now seeking protections and limitations. For example, most recently at the ICTY a Washington Post journalist was subpoenaed to testify in the case of Slobodan Milosevic. In opposing the subpoena, the newspaper argued that:

We are entering a new era and uncharted waters, but we have a strong international framework within which to map our course. Any approach chosen should not and cannot operate in disregard to existing laws and legal customs or existing political institutions, especially the United Nations. There need to be checks and balances within the international system, a mechanism for securing international peace and stability in the UN Charter, and existing treaties and customary international law – all of which provide an essential web of international justice to address serious violations of international humanitarian law and conflict resolution, which are intricately tied together. Such important decisions that can affect the fate of entire conflicts need to have the benefit of political debate and safeguards.

We must continue the systematic work begun in Nuremberg and built upon over the past half century to buttress the international framework to prevent atrocities and to catch and hold accountable the perpetrators of serious violations of international humanitarian law. The development of the responsibility of every individual state, the establishment of the UN Charter, the proceedings of the UN Security Council, the commendable work of the UN Tribunals in Rwanda and the Former Yugoslavia, the progress in international law have all shaped and strengthened the rule of law. We must not abandon the approach that makes the world democracies stronger for a quick fix international solution. Ensuring accountability is not a one size fits all process. We must work to make sure that all parts of the network that make up justice are reinforced and that no strand fails. Without a web, there is havoc and anarchy. But with a knitted effort, we can one day abolish impunity.

Thank you.