The Ongoing Battle for the International Criminal Court: American "Might" versus International "Right"

By Tara Ashtakala

After almost a decade of struggle, the International Criminal Court finally became a reality on 1 July 2002. For the proponents of the Court, however, there is no time to rest to savor this victory. Those who oppose the entire concept of an international entity possessing the power to call to account anyone of any nationality, having failed to prevent it, are now focusing their efforts on undermining the ICC before it even hears its first case.

It was actually back in April, after the necessary number of ratifications for the Rome Statute to enter into force was reached, that the Americans started to wage war openly on the ICC. After taking the uncommon step of retracting the signature that the previous administration had put on the treaty, the Bush presidency was then legally free to take concrete steps to undermine the spirit of the treaty. They even launched a last minute manoeuvre in the Security Council which appeared to imperil the coming into force of the Statute. Just a few weeks before the 1st of July, the US threatened to veto the renewal of the United Nations Peacekeeping Mission in Bosnia-Herzegovina unless the Council guaranteed that no American nationals serving on UN missions would be subject to the jurisdiction of the ICC. This veiled attempt to confer on the five-member Security Council the right to amend the terms of a treaty agreed to by over one hundred sovereign nations was repudiated by most of America's allies (except the British, who have devotedly asked the international community to accommodate every US demand to dilute the power of the Court). For a country that has only about 700 servicemen on peacekeeping duties (a fraction of the numbers that much poorer, militarily weaker nations, like Bangladesh, provide) the US was nonetheless able to convince the Security Council that the potential prosecution of peacekeepers represented enough of a threat to the maintenance of international peace and security, that measures had to be taken to prevent that menace under Chapter VII of the UN Charter.

Permanent Five Compromise

In a questionable interpretation of article 16 of the Rome Statute, a move that did little to appease non-Council countries like Canada which had fought hard to create a Court that would be free from political influence, the Permanent Five agreed to a compromise resolution to exempt all UN peacekeepers from ICC jurisdiction for a renewable period of one year. The resolution applies to cases involving peacekeepers in operations established or authorized by the Security Council, including the NATO mission in Afghanistan, and is specifically geared towards cases against personnel from non-State parties to the Rome treaty.

Not satisfied with this reprieve, however, the US has again invoked the terms of the very treaty it denigrates, in concluding agreements with other nations to not extradite American servicemembers or officials in those countries to the Court. Article 98 of the Rome Statute was mainly intended to cover existing Status of Forces Agreements, or SOFAs.

The Americans originally negotiated a collective SOFA with NATO partners to ensure that an American servicemember whose conduct violated both United States military rules and the law of the host country would be tried by US courts martial only. The USA has also negotiated similar treaties with countries like Japan where American troops were stationed, agreements which often went even further than the NATO SOFA in limiting the extent to which US soldiers would be subject to the jurisdiction of the host country.

It is in those countries which are both party to the ICC and where there is no SOFA or similar agreement that the Americans fear they will be caught by the Rome Statute, even though American peacekeepers are not serving on any mission in any country which falls into that category. Taking no chances, though, the State Department has taken up the task of concluding bilateral agreements with these nations (and with those that have signed onto the Court) to ensure that they will not surrender to the ICC any American accused of war crimes, crimes against humanity, or genocide, on the territory of those places. These accords say nothing about the accused being tried before US courts. Thus, if the aim of the Americans in concluding these agreements under article 98 of the ICC Statute is only to prevent the prosecution of Americans and not to see real justice done for victims of war crimes, some legal experts, including lawyers for the European Commission, have said that the bilateral accords violate the object and purpose of the Treaty and therefore are illegal.

Israel, Romania, Tajikistan, and East Timor have so far signed Article 98 agreements. While the former Soviet bloc countries and their dependent, emerging economies may have a more understandable interest in not wanting to displease Washington, the fact that Israel and East Timor would be willing to thus excuse any individual for war crimes is surprising, indeed. On the other hand, Canada, Croatia, Japan, Netherlands, Norway, Slovenia, Switzerland, and Yugoslavia have refused to create an exemption for US nationals.

European divisions

The European Union has been a strong supporter of the Court since the beginning, but there are differences of opinion within the body on the American immunity agreements: United Kingdom, Italy and Spain are attempting to compromise with the US, while France, Germany, Austria and Sweden want all EU members to refuse article 98 accords. The EC President, Romano Prodi, recently stated that those countries aspiring for membership to the Union should wait on signing such agreements until it reached a common position on the issue. This move provoked accusations from Washington that the Union is using undue pressure to prevent countries from signing the bilateral treaties.

While the State Department insists that America would never stoop to such manipulation to force countries to sign article 98 agreements - dismissing both reports of trade/aid threats and even the remarks of the USA's own war crimes ambassador suggesting that countries seeking NATO membership may want to think twice about refusing such accords - a less ambiguous expression of US feelings may be found in the domestic legislature.

"The Hague Invasion Act"

Senator Jesse Helms is notorious for drafting laws which aim to punish foreign countries when they follow policies independent of short-term US interests. His "American Servicemembers Protection Act," which was signed into law by George W. Bush in early August, includes provisions that prohibit US cooperation and intelligence sharing with the ICC, restrict US participation in UN peacekeeping, and prohibit military training and assistance to State parties. The provision authorizing the President to use "all means necessary and appropriate" has taken the image of America as the global supercop to new heights by allowing for the use of force, if necessary, to free from "captivity" any American being tried at the ICC headquarters in the Netherlands.

Rather than resort to the potential invasion of sovereign nations to protect Americans from prosecution, several legal scholars have argued that the US could achieve the same result by simply expanding the definitions of offences under its own War Crimes Act and in its Uniform Code of Military Justice, in order to match those of the Rome Statute. This would thereby ensure the triggering of complementarity provided for by the ICC. As long as a State has jurisdiction over the crime and demonstrates that it is genuinely willing or able to carry out the investigation or prosecution, a case cannot go before the Court. Currently, the 1996 Act, which ironically resulted from a desire to establish US criminal jurisdiction over people who committed war crimes against Americans, does not cover many of the crimes that are the subject of the Rome Statute. Furthermore, an issue may arise under this legislation as to whether the alleged misconduct occurred during a conflict that constitutes a "war." If the US government, even if it does not sign the Treaty, would be willing to do what all States parties to the ICC treaty were required to do in order to implement it, that is, put ICC language into its domestic legislation, then the Court may seem less threatening to Americans.

In spite of all the US suspicions, threats and obstacles, however, the Court is slowly moving ahead without them. In early September, the Assemly of States Parties, which decides upon the rules of procedure for the Court, met for ten days in New York. One of the more contentious issues they discussed was the election of judges. Amnesty International has reported that some States have not ensured the widest possible consultation with civil society in the selection of names; there are also allegations of back room vote trading, bribery and political pay-offs. The members of the Coalition for the International Criminal Court emphasized the need for the process of nominating and electing the 18 justices and one independent Prosecutor to be transparent, in order to belie the American allegations that the ICC would be politically biased, in particular against US citizens. The Rome Statute provides for a number of criteria that candidates for the bench must meet, including adequate representation of women and geographic diversity.

Canada has put forth the candidacy of Phillippe Kirsch, a vocal proponent of the ICC process since the beginning; elections will take place in February 2003. It is hoped that the backing of countries like Canada will continue to win other nations over to the cause of international justice and that right will eventually succeed over the might of those who oppose it.

Peace Magazine Jan-Mar 2003

Peace Magazine Jan-Mar 2003, page 19. Some rights reserved.

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