Surrendering Reason to Power

By John Gershman
August 17, 2002

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International opposition and outrage continues to grow in response to the Bush administration's latest attempt (the third in the past four months) to undermine the International Criminal Court (ICC). After President George W. Bush "un-signed" the Rome Statute of the International Criminal Court, the U.S. government then held the peacekeeping operations in the Balkans hostage until the UN Security Council passed a resolution that exempted peacekeepers from the court's jurisdiction for one year.

Its latest effort involves negotiating bilateral treaties with countries that would prevent them from turning U.S. citizens over to the court. The issue involves Article 98 of the court's treaty, which was designed to allow governments to devise orderly procedures to implement the treaty's preference for prosecutions by national authorities. This provision was premised on the ICC's ability to take jurisdiction of a case should it find that an investigation or prosecution at the national level was not conducted in good faith.

In recent weeks, the Bush administration has approached dozens of governments seeking Article 98 agreements against surrendering any U.S. suspect to the ICC. To pressure them to agree, the administration is citing newly passed legislation, the American Servicemembers' Protection Act. The law is less charitably known as the "Hague Invasion Act" because it authorizes the use of military force to free U.S. and allied suspects from detention by the court. (The ICC will be based in The Hague in the Netherlands.) The Act also places limits on various forms of U.S. military assistance to governments, other than NATO members and specified allies, that refuse to sign Article 98 agreements, unless the president issues a waiver stating that continued military aid is in the national interest.

Two countries, Romania and Israel, have pledged not to turn over U.S. citizens to the court. The Netherlands rejected such a deal and other European Union (EU) countries will meet in the next few weeks to decide a common policy. Switzerland and Yugoslavia have already refused a side agreement and Norway has said it is likely to refuse to sign such an agreement. (None of the three are members of the EU.)

Secretary of State Colin Powell claims the U.S. will not use the threat of withdrawing military aid as a bludgeon to get states to sign Article 98 agreements. Perhaps, but other forms of persuasion are clearly on the table. Romania is anxious to join both the EU and NATO. The U.S. linked the agreement with Romania to its support for Romanian membership in NATO. Now negative reaction from EU officials may have compromised its ambitions to join the EU.

The EU has since advised countries hoping to join the EU not to respond to the U.S. demands until the EU develops a unified policy on the Article 98 agreements in the coming month. Meanwhile a State Department spokesman said that such efforts were "inappropriate, in seeking to direct candidate country foreign policy choices in advance of EU accession." There is no mention of the appropriateness of Bush administration efforts to "direct" the foreign policy choices of other nations.

This week Colombia, the most recent country to ratify the ICC treaty, came under U.S. pressure. Undersecretary of State for Political Affairs Marc Grossman asked President Alvaro Uribe to shield U.S. military trainers in Colombia from prosecution by the International Criminal Court for any human rights abuses that may arise in connection with their work. Colombia, the third-largest recipient of U.S. military aid, has received nearly $2 billion in U.S. assistance over the past two years.

The irony of the U.S. campaign against the ICC is more than a little thick. Washington pressured the current Yugoslavian government to extradite its citizens to The Hague for the war crimes tribunals, including the former President, Slobodan Milosevic. But the Bush administration and many in Congress--on both sides of the aisle--remain unwilling to allow American nationals to face the same kind of trial. Colombia is the subject of human rights conditions on its military aid from the U.S., but the Bush administration wants to insure that U.S. military advisers will not be held accountable to human rights standards. As Senator Patrick J. Leahy, chair of the Senate Appropriations foreign operations subcommittee who drafted the human rights requirements for U.S. aid to Colombia, said, "I am concerned with the message this sends to the Colombian government when we are urging them to do more to protect human rights."

Human Rights Watch has criticized the Bush campaign against the ICC as undermining the framework of international law. Because the Bush administration refuses to cooperate with the court and rejects the oversight function (even for crimes committed on the territory of governments that have ratified the ICC treaty), governments would violate their treaty obligations if they surrender U.S. suspects to the United States rather than to the ICC. In a letter sent to all governments that have signed the ICC treaty, Human Rights Watch urged them to stand up to the administration's threat to end military assistance unless they agree never to surrender U.S. nationals to the ICC.

This month marks the 57th anniversary of the London Agreement, which established the charter for the International Military Tribunal at Nuremberg to try Nazis accused of war crimes. It was signed by the United States, Great Britain, France, and the Soviet Union. The U.S. was represented by Supreme Court Justice Robert H. Jackson, who went on to serve as the lead prosecutor in Nuremberg. In his opening statement at the Nuremberg trials, he hailed the tribunal, noting that "four great nations, flushed with victory and stung with injury [that] stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason." The Bush administration has decided it is time for Power to extract tribute from Reason.

On September 3, the court's first Assembly of States Parties will convene at United Nations Headquarters in New York. Made up of states that have ratified the ICC treaty--77 at last count--the assembly is the ICC's governing body. It would be a good time for advocates of international law and justice in the United States to make themselves heard.

(John Gershman <john@irc-online.org> is a senior analyst at the Interhemispheric Resource Center (online at www.irc-online.org).)

For More Information:

Human Rights Watch Campaign on the ICC
http://hrw.org/campaigns/icc/

Coalition for the International Criminal Court
http://www.iccnow.org/