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Less enthused was the US delegation to the Rome conference. The US was one of seven countries to vote against the treaty. US delegates favored a court in principle, but said this particular treaty did not adequately address US concerns.

An international criminal court has been under discussion for decades. Since the start of the UN 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 attempts in the past have been the Nuremberg and Tokyo trials after World War II and the current temporary war crimes tribunals for Rwanda and Yugoslavia. To remedy the situation, delegates from 161 countries came to Rome for five weeks to hammer out a treaty which would allow these nations to create this new court.

There were several items of contention at this conference. They included the possibility for nations to opt out of certain parts of the treaty, limits on the court's jurisdiction, the role of the UN Security Council, and sentencing.

"The second compromise 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. That would have meant 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," Fowler continued. "By eliminating that provision you've essentially ensured that dictators can take their vacations without fear of being arrested and turned over to international justice."

The US led the movement for sharply limiting the jurisdiction of the ICC and preserving the sovereign rights of nations. Ambassador David Scheffer, the representative of the US at the Rome conference, said, "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," said Scheffer.

"The maximum that an individual could get [from this court] is a term of life imprisonment. 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," said Fowler. "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."

Security Council
Delegates also differed over the role the UN Security Council will play with this court. The US, 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. The Rome treaty gives the council some control over the court—not as much as the US wanted but more than advocates of a strong court preferred.

"The Security Council will be able to trigger the court's jurisdiction," said Jelena Pesic from the Lawyers Committee for Human Rights. "And 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. My organization is unhappy that that provision is in."

Many nations were also reluctant to give the Security Council this power. "We are very greatly concerned about the proposal to provide the UN Security Council with a referral role," said Dilip Lahiri, the Ambassador of India to this conference. "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."

US Role
Ambassador Scheffer said, "The US has been a strong proponent of an appropriate court that it can back with its diplomatic, financial, and other resources. But we stand on the eve of the conference's conclusion without having found a solution. The US 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."

"The US pulled out all the stops it could in pressuring both allies and smaller countries in order to achieve the result that it desired," said Pesic. The US was particularly concerned that the ICC would allow frivolous legal action to be taken against US soldiers serving in peacekeeping operations overseas. Canadian Foreign Minister Lloyd Axworthy took a different view on the dangers facing peacekeepers. "This [new court] is a much better way of protecting troops abroad than you have right now," said Axworthy. "We have been in probably more peacekeeping missions than virtually any other country in the world. And we believe this court is one way of providing a degree of security in that area."

"There is no threat to the US or to any of its soldiers by what we're trying to do here," said Nuremberg prosecutor Ferencz. "The Security Council has protected the US from being abused by anybody and the principle of complementarity [accepting the outcomes of national judicial proceedings] assures that no American soldier would be tried for crimes which are a violation of the rules of law."

Losers
In the end, the US and six other nations voted "no" on the treaty. One hundred and twenty voted "yes." "I think there is a strange coalition of bad losers [at this conference], which are the US, plus Iraq, Libya, Sudan, China," said Emma Bonino, a conference delegate and member of the European Commission.

"I don't think the US is a loser," said Cherif Bassiouni, chair of the ICC treaty drafting committee. "I think the US made tremendous gains in getting its points of view across and its positions taken into account. I think the [US] was negotiating with a view on the conservative members of the Senate. And, of course, that makes it very difficult," said Bassiouni.

"I think US participation [in the new court] is extremely important, and I don't really see any true difficulties for the US to join it," continued 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 US; and I don't see how anybody in good judgment can oppose it."

"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 ratifications. So in terms of recent practice, it is not excessively high," MacKay continued. "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."