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ICC – New Threat to U.S. Sovereignty (NewsMax.com / United Press International) August 27, 2003

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Just below the international headlines about Iraq adn the Middle East has been an important series of stories about a major new venture: the International Criminal Court.

To some, this new court in the Hague is the most significant international institution since the United Nations. To others, including U.S. policymakers, it represents a major threat to national sovereignty and values.

Consider the tug-of-war between these views of the new world court from this summer’s headlines:

* At the request of the United States, the U.N. Security Council voted 12-0 to exempt U.S. soldiers serving on U.N. peacekeeping forces from prosecution by the International Criminal Court for one year. U.N. Secretary-General Kofi Annan protested and France, Syria and Germany abstained in dissent. Supporters of the court claimed that the resolution was inappropriate and illegal.

* The Greek Bar Association filed a complaint with the new court charging British Prime Minister Tony Blair with war crimes in Iraq. President George W. Bush avoided charges because the United States did not sign the treaty, fearing political prosecutions of just this kind.

* The United States seeks bilateral agreements with allies agreeing not to turn American soldiers on their territory over to the International Criminal Court for prosecution. Countries not signing such agreements by July 1 faced the loss of military aid, causing charges that the United States was bullying weaker countries into cooperating with its anti-court crusade.

* When the U.S. president arrived in Senegal, protestors changed “Bush is a criminal … send Blair to the International Criminal Court.”

* Summarizing the U.S. position on the International Criminal Court, a headline in the London-based Economist magazine read: “America versus the rest.”

The truth is that the concept of an International Criminal Court could and should represent a strengthening of justice and the rule of law. But the devil is in the details, and the development of this particular court represents a significant treat to American sovereignty.

Sadly, this is no accident. Proponents of the court aggressively expanded its jurisdiction so that it would necessarily undermine national sovereignty and attempt to shift power away from the United States. Now they seem surprised that the United States is resisting this overreach of international power.

Historically, international criminal courts have been established on a case-by-case basis, as needed, and the United States has supported every one. From criminal tribunals in Nuremberg and Tokyo following World War II, to ad hoc tribunals for Rwanda and the former Yugoslavia in the 1990s, these special courts have prosecuted war crimes, genocide and crimes against humanity.

The United States not only supported each of these special tribunals, but also the movement to establish a permanent court. But a funny thing happened on the way to Rome in 1998, where diplomats planned to discuss a framework for the ICC. A group of human rights groups such as Amnesty International and Human Rights Watch joined with small- and medium-sized states such as Canada and several of the European Union countries to expand the jurisdiction and powers of the proposed new court.

Rather than involving the U.N. Security Council in referring cases, as had been done historically, this group wanted an independent prosecutor who could bring cases more proactively. Whereas international law limits the effect of treaties to those nations that sign them, proponents of the court wanted it to have jurisdiction over citizens of non-party states. And they wanted to add a new, undefined crime of “aggression” to the list of crimes the prosecutor could charge.

These were overreaches of jurisdiction beyond anything done before and they were out of step with the recommendations of the International Law Commission charged by the United Nations with structuring the court. Therefore, the United States rightly objected to them.

The surprise was not that the United States refused to go along with this expansive agenda for the court, but that proponents of the court rushed it through to approval without the support of major world powers. Even today, fewer than half the nations of the world, representing considerably less than half its population, have ratified the treaty.

How, then, is U.S. sovereignty affected by a treaty the United States ahs not ratified? The court purports to have jurisdiction over crimes committed by citizens of states that have ratified the treaty, but also crimes committed on the territory of signatory states. As a result, the United States, which has more troops engaged in peacekeeping and other missions around the world than any other nation, is most vulnerable. Supporters of the court argue it is nonsense for the United States to fear prosecution by the International Criminal Court, since its purpose is to provide justice in areas where local and regional courts are not up to the task.

The new president of the court, Canadian Philippe Kirsch, recently confirmed: “It is not designed (for) democratic leaders.” Of course, charges have been filed against Blair for war crimes in Iraq, and no one doubts that similar complaints would be made against U.S. leaders if the United States or Iraq were a party to the court.

Belgian courts, which also assert universal jurisdiction over war crimes, genocide and crimes against humanity, have a full docket of democratic leaders, including Gen. Tommy Franks and former President George H.W. Bush.

In fairness, proponents argue, court filings against democratic leaders must not result in court action. Only time will tell, of course, and no one should doubt that the political pressures that created such expansive jurisdiction for the court, and the anti-American sentiment behind it, will result in great pressure on the prosecutor to pursue such cases. And, as we have learned with special prosecutors in this country, even the filing of charges and subsequent investigation are themselves highly charged and politically powerful.

Court supporters also claim that the principle of “complementarity,” included in the Rome treaty, prevents the International Criminal Court from pursuing cases that local jurisdictions can and do pursue. On closer legal analysis, however, complementarity has holes you could drive a truck through.

If the United States, for example, did not prosecute one of is soldiers for a war crime, the court could easily find the Untied States “unable or unwilling” to pursue the matter and go forward anyway. Listen to internationalists talk about their views of our military tribunals or the death penalty, and it is easy to see how U.S. courts could be ignored.

In the end, the International Criminal Court is not just about justice, as it could have been with careful drafting of the Rome statute. It is equally about international politics and altering the balance of power. Small- and medium-power states actively seek to develop international institutions that will proactively balance the economic, military and diplomatic power of the United States. The International Criminal Court is only their latest creation, and the United States is right to oppose its aggressive jurisdictional reach.

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