July 10, 2003 | WebMemo on International Organizations

Bold & Appropriate: Withholding Military Aid Over ICC Waivers

President Bush's decision to suspend $47 million in military aid to 35 countries that have not signed International Criminal Court (ICC) waivers is bold, appropriate, and consistent with the American Servicemembers' Protection Act (ASPA).

The United States must continue to work with the U.N. Security Council to achieve permanent ICC immunity for U.S. service members, as the court represents an unacceptable legal bureaucracy that invites political manipulation.

As the most powerful nation in the world, the United States maintains a unique position in international affairs. This includes certain duties and responsibilities that no other nation can uphold.

America's Unique Position
The July 1 ASPA deadline authorized the United States to withhold military aid to countries supporting the ICC. Thus, any nation that receives U.S. military aid -- and is party to the treaty -- will not be granted those funds unless the President issues a waiver for national security reasons or the nation signs a waiver giving American service members ICC immunity.

The issue is especially relevant today. Current U.S. engagements include:

  1. Peacekeeping efforts in the Balkans,
  2. Helping Afghanistan and Iraq move beyond their brutal dictatorships, and
  3. Possibly committing several thousand ground troops to Liberia as part of an international peace keeping effort.

When chaos broke out in the Balkans, the United States led major military efforts to restore order even though the crisis had no bearing on U.S. national security. The same has been true elsewhere, such as Haiti and Somalia. Most importantly, when global and regional threats emerge that require the ability to defeat aggression, only the United States has the capability to fight large-scale expeditionary warfare, such as in Iraq and Afghanistan.

In all of these crises, the United States was the only nation either able or willing to respond. The United States unique position in international affairs includes certain duties and responsibilities that no other nation can uphold. Many of these, such as maintaining freedom on the seas, require the application of military force. If not for the American blue water navy, the world's oceans would be wrought with lawlessness.

Politics & the ICC
Throughout these operations, U.S. personnel -- uniformed and civilian -- have continuously been harassed by international activists with accusations of war crimes and crimes against humanity.

The ICC would give standing to such accusations, when in fact it represents an unacceptable legal bureaucracy that invites political manipulation. It claims authority to arrest, prosecute, and punish nationals from any country, who are accused of war crimes, genocide, crimes against humanity, and the undefined crime of aggression. Despite concerns over political manipulation there are plenty of reasons to oppose it in principle.

U.S. exemptions from ICC jurisdiction should receive broad support because:

  1. Americans will be subject to politically motivated accusations. One of the key reasons that the United States rightfully declined to become state party to the ICC was because of harassment by international anti-American activists continuously making accusations against the United States before the court. Critics denied that this would be the case. However, in the year since the court was established this has been shown to be very much the case as people like U.S. Secretary of Defense, Donald Rumsfeld and U.S. Central Command head, General Tommy Franks have been continuously harassed and accused of war crimes.
  1. Americans are not the problem. If the court would do all the good that its advocates proclaim it should first recognize that the United States is not the problem. The United States commits neither crimes against humanity or genocide. In fact, the United States has spilled more blood and treasure stopping such atrocities then any other nation on the face of the Earth. And it continues doing so, even if some critics prefer to ignore the evidence.
  1. American criminals are successfully prosecuted by the American judicial system.  Neither America's civilian population nor its military is beyond breaking laws. The United States, however, has one of the most effective judicial systems, military and civilian, in the world. If an American soldier does commit a crime, the United States maintains a system of laws to ensure that justice is legitimately done.
  1. Americans cannot be expected to contribute to coalitions without ICC immunity. Perhaps most importantly for the international community, the United States would be very hesitant to participate in any coalition actions, other than those that directly advance or defend the U.S. national interest. The United States is highly unlikely to participate in international peacekeeping coalitions in the future if the anti-American international left is free to make accusations against U.S. citizens of war crimes and crimes against humanity. When the operation is in direct support of the nation's security, such as in Iraq and Afghanistan, the risk of trumped-up legal accusations is exceeded by the risk of not addressing the threat. However, when the operation does not support vital national interest, the inevitable legal charges are one more reason why the United States should not commit ground troops.

This is precisely why, even from the liberal internationalist perspective, it is so important for nations to give U.S. forces exemptions from ICC prosecutions. Regardless of the facts, anti-American international elitists will view any U.S. participation as imperialist. Of course, they will initially demand that the United States commit its troops. As soon as American troops take an action liberal activists deem inappropriate, however, they will be branded war criminals.

Antithetical to National Sovereignty and International Law
In addition to these serious practical concerns, the ICC is antithetical to the United States' founding principles. The fundamental rights secured by the American Revolution in the War of Independence -- rights subsequently enshrined in the U.S. Constitution and successfully defended by Americans on battlefields around the world -- can be summed up as follows: The American system of government is based on the consent of the governed, and Americans have the right to be tried in accordance with the laws enacted by their elected representatives, to be judged by their peers and none other.

The ICC treaty, in its conception and execution, is antithetical to these rights. Its tribunals will not be based on trial by jury, and the court itself decides when it does and does not have jurisdiction. There is no protection against double jeopardy, and there is no right to confront one's accusers.

Furthermore, the ICC is actually hostile to international law.  Proclaiming jurisdiction over all nations -- even those that have not signed the agreement -- is in direct contrast to the Vienna Convention on the Law of Treaties, which declares that no state is subject to an international agreement to which it does not consent. Hence the ICC is illegal when measured by long-standing international law.

The United States must continue to work with the U.N. Security Council to achieve permanent immunity from ICC authority for U.S. service members. Until the ideal goal of permanent immunity is achieved, the United States will face an annual showdown over the ICC, in which it may be forced to threaten to veto the resolutions that renew U.N. peacekeeping missions, unless a new one-year immunity is granted. The U.S. government has tried appeals to reason in the attempt to persuade other nations to grant U.S. service personnel immunity. Now it is time to try appeals to the pocket book.

--Jack Spencer is Senior Policy Analyst for Defense and National Security in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.

About the Author

Jack Spencer Vice President, the Institute for Economic Freedom and Opportunity