Justice by Fiat


Justice by Fiat

Jun 21, 2004 6 min read
Brett D. Schaefer

Jay Kingham Senior Research Fellow, Margaret Thatcher Center

Brett is the Jay Kingham Senior Research Fellow in International Regulatory Affairs in Heritage’s Margaret Thatcher Center for Freedom.

For the third time in as many years, the United States is seeking a U.N. Security Council resolution to prevent the International Criminal Court (ICC) from investigating or prosecuting cases involving U.N. peacekeepers from countries that are not parties to the court. Needless to say, devotees of the court - which was established to prosecute war crimes: crimes against humanity, genocide, and the as-of-yet undefined crime of aggression - are beside themselves. A statement by a spokesman for the Coalition for the International Criminal Court is typical: "...people disagree with this double system of justice, one for Americans and one for the rest of the world."

Although supporters of the court have a noble purpose, trying to impose their idea of justice on unwilling nations is no virtue. One of the most basic principles of international law is that a state cannot be bound by a treaty to which it is not a party. Further, long-standing international legal norms hold that a state cannot be bound to legal assertions that it has specifically rejected. The ICC, however, directly contravening the norms and precedents of international law, claims jurisdiction to prosecute and imprison citizens of countries that are not party to the Rome Statute and, more shockingly, over those who have specifically rejected the court's jurisdiction.

This unprecedented break with international legal norms has required the U.S. to take unusual steps to protect its citizens and military personnel. America's strategy is two-fold. First, it seeks to protect American personnel participating in U.N. peacekeeping operations through Security Council resolutions preventing ICC prosecution. America succeeded in getting two resolutions approved by the Security Council in 2002 and 2003. Second, the U.S. seeks to protect its people through a network of non-surrender agreements (or "Article 98" agreements, after the section of the treaty that permits such arrangements) with as many countries as possible. Countries that sign such agreements with the United States promise, in effect, not to surrender U.S. nationals to the ICC without the consent of the U.S. government.

Despite the best efforts of pro-ICC countries and groups, America has made good progress securing Security Council resolutions 1422 and 1487 and is working toward a third renewal. America has also concluded Article 98 agreements with 90 governments, in every region of the world, that agree with U.S. concerns about the court. Significantly, over two-thirds of these agreements are with ICC parties and signatories.

WHY AMERICA MUST PROTECT ITS PEOPLE America is pursuing this policy out of concern that the ICC could be used as a tool by those opposed to its foreign policy to make political statements through ICC prosecutions. Supporters of the ICC disparage America's policy as unnecessary. They claim that there are protections in the ICC treaty to prevent abuse of the court - after all, the court can only intervene in cases committed on the territory or involving a person of an ICC party, and then only if a nation proves unwilling or unable, in the judgment of the court, to investigate and prosecute alleged crimes.

This is cold comfort. No nation is more dedicated than the United States to preventing crimes against humanity, war crimes, and genocide, and to bringing criminals to justice. The deplorable crimes committed in Abu Ghraib serve to support this contention. America continues to fully investigate and is proceeding to punish those responsible with the full weight of U.S. law.

America's determination to punish perpetrators of these crimes offers no protection from politically motivated charges, however, as demonstrated by those alleging that the incident constituted war crimes and insinuating that the U.S. is covering up particulars of the incidents. These and similar experiences - like the ridiculous charges under Belgium's "Universal Competence" law against President George H. W. Bush, Secretary Powell, Vice President Cheney, and General Tommy Franks, among others, for their roles in Operations Desert Storm and Iraqi Freedom - reinforce America's determination to protect itself from politically motivated criminal allegations.

Unscrupulous individuals and groups will seek to similarly misuse the ICC for politically motivated attacks. America is uniquely vulnerable to these kinds of charges, because of its extensive network of military bases and deployments in defense of its myriad interests around the world. In many cases, its interests require a presence or deployment to an ICC party, or military action against the nationals of an ICC party. Each instance opens a Pandora's box of legal vulnerabilities ripe for exploitation.

That the ICC can be used for such abuse is demonstrated by over 100 charges against U.S. persons submitted to the ICC in only two years of its existence. While the court's chief prosecutor has announced his decision not to investigate these charges, the decision was all but a forgone conclusion because most of the charges involved cases where the ICC clearly has no jurisdiction - crimes allegedly committed by a non-ICC party in the territory of a non-ICC party. However, American personnel will not always fight military campaigns in the territories of non-ICC parties. As noted by international lawyer Lee Casey, "The real test will come when there is a demand for an investigation in circumstances where there's a disagreement about that jurisdiction, and that will happen when Americans are accused of offenses before the court on the territory of a state party."

Since the vast majority of the court's discretion lies within the Office of the Prosecutor, the ICC offers little opportunity to resolve these issues diplomatically and, because of its lack of appropriate checks and balances to prevent it from being misused, represents a dangerous temptation for those with political axes to grind. Americans need more reliable protection than the goodwill and good judgment of an international legal bureaucrat.

A POLICY MISUNDERSTOOD The Bush administration could have adopted policies designed to cripple the ICC. Instead, out of respect for nations that support the court, the U.S. has pursued a policy of minimal disruption by using provisions of the ICC treaty to shield its people from the court. Unfortunately, America's careful effort to satisfy its concerns by using a provision contained within the treaty has been misunderstood or mischaracterized.

Advocates of the ICC have ratcheted up a campaign against America's measured policy, including a European Union-led campaign pressuring countries not to sign Article 98 agreements. This campaign is peculiar, as many of these same EU countries urged America to address our concerns by relying on Article 98 of the treaty rather than the United Nations Security Council or some other mechanism outside the treaty.

These efforts by the EU are totally unacceptable and undermine trans-Atlantic relations. Worse, they show a lack of understanding on the part of our allies. America sees these agreements as the avenue through which it may minimize the impact of the ICC on our bilateral and multilateral relationships, and the impact on how we fulfill our international obligations. When questioned about the U.S. policy, a senior ICC official asked, "All we need from the United States is benign neglect. Is that too much to ask?" Indeed, that is the essence of U.S. policy - America is not discouraging countries from joining the court, but simply asking that they respect America's decision not to be bound by a court to which it objects.

Worse than the effort to impose the ICC on an unwilling United States is the potential impact of this effort on international peace and security. If the U.S. is not successful in renewing the Security Council resolution protecting non-ICC parties participating in United Nations peacekeeping operations from the court, U.S. participation in those operations would be severely curtailed. Moreover, U.S. support for those missions could be severely eroded and set the U.S. on a more aggressive course vis-à-vis the ICC, particularly if Congress takes offense. America is committed, proven through its sacrifice of blood and treasure, to opposing despots and bolstering democratic systems of government based on the rule of law. If successful, those lobbing politically motivated charges designed to deter American policy may reap the unintended harvest of a world rendered less secure and less peaceful by an America disinclined to act.

PROTECTING AMERICANS FROM THE ICC Claims by the ICC to represent the will of the world are patently false. The fact of the matter is that, although nearly three-fourths have signed the ICC treaty, less than half of the world's nations are party to the ICC, and ICC parties comprise a minority of the world population and economic output. Seeking to impose international legal requirements and jurisdiction on unwilling sovereign states is unsupportable, and a clear contravention of international law. The United States is not alone in its concerns about the court, as demonstrated by the many nations that are not ICC parties, America's 90 Article 98 agreements, and likely success in renewing the Security Council resolution protecting non-ICC party nationals from the court.

Even if every nation except the United States were a party to the ICC, America would still be entirely justified in its effort to ensure that its nationals and military are not affected by the illegitimately asserted jurisdiction of the ICC. As long as the U.S. determines that it is not in America's interest to join the ICC, a president who fails to pursue every effort to protect Americans from the ICC would be derelict in his responsibility to the American people.

Brett D. Schaefer is Jay Kingham fellow in International Regulatory Affairs at the Heritage Foundation and former assistant for ICC policy at the Department of Defense.

First appeared on National Review Online

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