July 10, 2003 | WebMemo on International Organizations
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:
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:
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.
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.