July 11, 2002
By John C. Hulsman and Brett D. Schaefer
Our colleagues in the United Nations are growing restless. What,
they ask, will it take to get America to sign on to the
International Criminal Court (ICC)?
Consider the protections included in the treaty, its backers
say. The ICC's charter requires the tribunal to complement national
courts, not supersede them. "Retrospective" prosecutions -- for
actions that took place before July 2002 -- would not be permitted.
The U.N. Security Council can block prosecutions for fixed
Unfortunately, these protections aren't as substantial as they
may seem. The court remains vulnerable to politically motivated
prosecutions of American soldiers, including those who participate
in U.N. peacekeeping operations. That's why the United States has
been using its veto power in the Security Council to try and block
renewal of the U.N. mission in Bosnia and Herzegovina.
This move should not have shocked anyone. In fact, until a
compromise can be forged that ensures the treaty can't be used as a
political weapon, the United States should withhold its support for
all future U.N. peacekeeping operations.
Rather than have the Security Council vote on whether to block a
prosecution -- and then only for a limited period of time -- why
not require the Council to approve a prosecution? This way, the
United States' one vote against would be enough to stop a case from
Under the ICC treaty's current terms, the United States must
secure a favorable vote in the Security Council to stop an
investigation -- which means we'd have to convince eight of the
other 14 Council members to vote with us to stop illegitimate
prosecutions of U.S. soldiers. And we'd have to persuade the other
permanent members of the Security Council (Britain, France, Russia
and China) not to veto our efforts.
The treaty provision on this matter, as currently constructed,
presents an unacceptable danger to U.S. nationals and violates
international law. Only the Security Council can authorize U.N.
missions, so only the Security Council should be able to decide
when prosecution of U.N. peacekeepers by the ICC is appropriate.
The present treaty also would effectively force us to adhere to a
treaty we didn't ratify -- another violation of international
ICC supporters say the United States has nothing to fear from
this court. U.S. soldiers virtually always display exemplary
conduct in the field, and when the few exceptions to this do arise,
America has proven quite capable of meting out justice and
admitting wrongdoing. And on most common criminal matters, they
say, such as the U.S. soldiers on Okinawa accused of sexual
assaults against locals, the ICC wouldn't be involved anyway.
But Americans harbor this peculiar notion that power derives
from the governed, that national sovereignty -- driven by
democratic accountability -- trumps unaccountable and opaque
international bureaucracies with no direct democratic link to those
they purport to govern. They also know that America's military
activities don't always enjoy broad support and that there's no
shortage of people and nations who seek to undermine American
To overcome this impasse, President Bush proposes a 12-month
immunity from ICC prosecution for soldiers on U.N. peacekeeping
missions who represent countries that are not part of the Rome
Statute that established the ICC. The president wants to use this
period to forge a compromise that would have the Security Council
deciding which potential cases involving U.N. peacekeepers can go
forward. Such a move, which would allow for U.S. vetoes, would
provide ample protection for Americans involved in U.N.
An impasse serves neither the interests of the United States nor
of the United Nations. And the Bush compromise seems a reasonable
way to address American concerns and those of the United Nations.
If other countries truly expect the international community to
enforce justice through the ICC, and not simply establish another
venue for anti-American venting, they shouldn't object to giving
the final say over which cases move forward to the very institution
charged with protecting international peace in the first
Hulsman is a research fellow specializing in European
issues at The Heritage Foundation, where Brett
Schaefer is the Jay Kingham fellow in international regulatory
Distributed nationally on the Knight-Ridder Tribune wire
Breaking the ICC Impasse
John C. Hulsman
Read More >>
Brett D. Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
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