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International
Justice By John M. Miller
The bad news: Even as many governments and human rights activists celebrated, the Bush administration’s campaign to undermine the court was well under way. The International Criminal Court came into being in July of 1998, when representatives of 120 governments meeting in Rome overwhelmingly approved the ICC treaty. By April of last year, the treaty had received considerably more than the 60 ratifications required, and it accordingly entered into force last July 1, which means that the court can try individuals for violations of international law committed after that date. The court is meant to be simultaneously a deterrent to violations of international law and a last resort that can bring individuals to trial only when national courts are unable or unwilling to do so. At this writing, 87 countries have ratified the treaty, giving the court jurisdiction over genocide, war crimes and crimes against humanity committed either by member nations’ citizens or within their territories; the court can try cases referred to it by the country where the crime took place or by the country of the accused. Ratifying states make up an assembly overseeing the court and are in the process of selecting and appointing judges and prosecutors. The International Criminal Court will be inaugurated in the Hague, Netherlands, on March 11. Growth of
an Idea The idea of a war crimes court was first raised about 130 years ago in response to atrocities committed during the Franco-Prussian War. Calls for a permanent court surfaced after World War I. After the Second World War, the horrors of the German concentration camps gave rise to both a wide range of treaties and conventions defining fundamental human rights and the laws of war and a renewed call for a permanent international court in which to try those who breached those laws. In the absence of such a court, the victorious Allies tried Axis war criminals in Nuremberg, Germany, and in Tokyo. But momentum for an international court to prosecute many of those crimes did not build until the 1990s, when the U.N. Security Council established ad hoc tribunals in response to genocide and other gross abuses in former Yugoslavia in 1993 and Rwanda in 1994. The U.S. government supported both tribunals. Serious negotiations for a permanent court began in 1996, with U.S. participation. U.S. representatives at the negotiations worked to narrow the court’s jurisdiction—specifically by exempting from that jurisdiction citizens of the United States (or any other country that was not a party to the treaty)—and to limit its prosecutors’ independence. The United States succeeded in defeating a provision allowing a government that has custody of a suspect to ask for an ICC investigation even if no other country demands one, but failed to get the desired exemption for U.S. citizens. In the end, this country voted against the final version of the statute in Rome in 1998. President Bill Clinton nevertheless signed the treaty on December 31, 2000, the deadline for full participation in shaping implementation of ICC procedures. The negotiation and ratification were a triumph of international organizing. Like the worldwide campaign for an international treaty banning land mines (a treaty the United States has never ratified), pressure for a court came from grassroots human rights groups from across the globe. Those groups did not achieve all they sought. They remain concerned about provisions limiting the effectiveness of the court, including one allowing the U.N. Security Council to delay court proceedings for a year and another allowing countries to opt out of the court’s jurisdiction for seven years after ratification. Fear of
Justice The administration and other critics have presented a number of arguments against the court. They object to the possibility that U.S. nationals will be tried by a court the United States has refused to ratify, even though U.S. citizens are of course subject to trial in foreign countries for crimes committed in those countries. Critics also argue that a “rogue” court could undermine U.S. foreign policy, because as the predominant global power the United States would make a tempting target to “politicized” prosecutors or judges. But while the United States has claimed to be defending enlisted soldiers from the danger of prosecution, its real fears appear to be for people somewhat higher up the chain of command. “Our concern goes beyond the possibility that the prosecutor will target for indictment the isolated U.S. soldier,” said Undersecretary of State John Bolton in a speech last November to the conservative Federalist Society. “Our principal concern,” he added, “is for our country’s top civilian and military leaders, those responsible for our defense and foreign policy.” These leaders, he claimed, are “potentially at risk [at the hands of] the ICC’s politically unaccountable Prosecutor, as part of an agenda to restrain American discretion.” It was for that reason that the United States recently rejected a compromise offered by the European Union to exempt from ICC prosecution members of U.S. armed forces actually sent abroad. The U.S. government wants all U.S. nationals exempted, especially military and political leaders at home. Congress joined the campaign against the court last summer by passing the American Service Members’ Protection Act, nicknamed by opponents the “Hague Invasion Act” because in its original form the legislation would have authorized the president to use “all means necessary and appropriate” to free U.S. citizens held by the court. As passed, the act prohibits U.S. cooperation with the court, restricts U.S. participation in U.N. peacekeeping operations unless U.S. troops are exempted from court jurisdiction and prohibits military assistance to countries that ratify the ICC treaty. Exceptions to the latter ban include NATO members and some other U.S. allies, and the president may under certain circumstances waive many of the above prohibitions in the interest of national security. Since last spring, the State Department has worked to undermine U.N. peacekeeping missions unless the desired exemptions were granted. In May, the government tried and failed to get an exemption for all peacekeepers in the post- independence mission in East Timor; when it failed, although the United States had voted to establish the mission, it refused to replace three unarmed military observers. The U.S. government tried similar tactics when the U.N. mission in Bosnia came up for renewal, demanding permanent immunity for its nationals. Finally, it succeeded in gaining a compromise Security Council resolution that shields from investigation peacekeepers from countries not party to the ICC, like the United States, for one year, unless the Security Council decides to lift the immunity. The Council has expressed its intention to renew the exemption annually. Unable to gain blanket immunity for its officials from prosecution by the court, the United States has set out to negotiate if possible and coerce if necessary bilateral agreements that pledge countries not to send U.S. employees to the court without U.S. permission. (Coercion has included threats to deny assistance.) At least 14 countries (including East Timor) have reportedly signed such pacts, known as “Article 98 agreements” after a provision in the Rome Statute, although many of them await approval by parliaments and have not taken effect. Non-governmental organizations and other critics see this as an abuse of Article 98, which provides that countries cannot surrender individuals to the court if such surrender would be inconsistent with obligations under another international treaty. Analysts say that provision refers to existing agreements, not ones specifically created to evade the court. How Far
Have We Come? The Bush administration has clearly asserted that it must be free to act anywhere, unilaterally or pre-emptively if it thinks necessary. As the sole superpower, it asserts the United States is different and should not be held to the same standard as other countries. And like far too many police, the United States would prefer to be unaccountable and above the law. But many would argue that it is above all the most powerful who must be held to universal standards. To the extent that the International Criminal Court represents an attempt to impose a single standard of justice worldwide, it is no wonder that an administration that refuses to be subject to any such standard seeks to undermine it. For more information: John M. Miller is the U.N. representative in New York City for War Resisters’ International and for the International Federation for East Timor. |
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he
good news: As of this coming March, there will finally be a court in which
to try war criminals and other violators of international law. The treaty
launching a permanent international criminal court—the treaty’s formal
name is the Rome Statute of the International Criminal Court—took effect
last summer.