August 29, 2002 | Commentary on Europe
About two months ago, the United States and the European Union were locked in a showdown over the International Criminal Court (ICC). The Court was scheduled to come into being on July 1, despite U.S. objections to its claims of universal jurisdiction -- even over the citizens of nations that haven't ratified it.
U.S. officials correctly pointed out that "universal jurisdiction" violates one of the bedrock principles of international law -- that nations can't be bound by treaties they haven't endorsed. So they vowed to veto renewal of U.N. peacekeeping operations unless the Security Council agreed to grant peacekeepers "immunity from [ICC] arrest, detention and prosecution," although they could still be investigated and prosecuted in their native countries. This would have provided protection for U.S. participation in U.N. peacekeeping operations.
Led by the European Union, other nations objected, arguing that the ICC already contained ample protections and that such immunity would unduly weaken the court. Instead of seeking immunity, they said, the United States should negotiate "Article 98" agreements (named after a provision in the ICC charter) with individual nations to prevent the transfer of American citizens to the court.
"So we took that advice, and that's exactly what we are doing," U.S. Undersecretary of State for Political Affairs Marc Grossman said. In the interests of trans-Atlantic relations, the United States agreed to pursue this strategy after securing a one-year immunity for U.N. peacekeepers on July 12.
Crisis averted until next year, right? Wrong.
After the U.S. successfully negotiated its first "Article 98" agreements with Israel and Romania (an aspiring member of the European Union), an EU spokesman expressed regret over the agreements. Going the "Article 98" route was, he said, a "bad political signal." Moreover, the EU urged the 10 nations aspiring to EU membership in 2004 not to sign similar agreements until EU bureaucrats in Brussels had an opportunity to assess the consequences of such agreements.
"It doesn't make any sense for someone who wants to join a club not to abide by the rules of that club," he said. This makes it sound as if the EU had a common foreign policy, which is certainly a fiction, and that the rules don't permit EU members to negotiate agreements with other free, law-abiding nations.
The bottom line, though, is this: The European Union told the United States to seek protection through provisions outlined in Article 98 of the Court's charter. Then it told nations aspiring to EU membership to avoid signing such agreements with the United States, implying that it could harm their chances to join.
In addition to this duplicity, there's more than a little hypocrisy at work here. Prior to sending troops to Afghanistan, European nations themselves negotiated an Article 98 agreement with the Afghan interim government.
Regardless of its public statements, the EU is clearly trying to force the United States to abide by a treaty it hasn't ratified and to which it has explicitly voiced its opposition.
But just as America respects the right of other nations to join the ICC, other nations should respect our decision not to become party to a document the Bush administration deems counter to U.S. national interests. Pressuring EU candidate nations to adopt a position taken by unelected EU bureaucrats -- who may or may not have their interests at heart -- is clearly detrimental to the trans-Atlantic relationship.
Worse, it calls into question the respect of European Union officials for the sovereignty of its member states and democratic principles in general. Talk about a "bad political signal."
John C. Hulsman is research fellow for European affairs in the Davis Institute for International Studies at The Heritage Foundation. Brett D. Schaefer is the Jay Kingham fellow in international regulatory affairs in Heritage's Center for International Trade and Economics.
Distributed nationally on the Knight-Ridder Tribune wire