Understanding the American Case on the ICC
Wall Street Journal - July 4 2002
Once again, it seems, America is in the firing line. Unwilling to accept the possibility that an international court might try its soldiers or, worse still, its political and military leaders, for "crimes of war" committed in a signatory state the U.S. has threatened to block U.N. peacekeeping missions unless all U.N. troops are given immunity from prosecution. The EU - in the forthright words of External Relations Commissioner Chris Patten - responded by saying it would not "let anyone water down the commitments." On this one, I must say, George W. Bush has a point.
First let me make one thing clear. I am not an uncritical supporter of either America or the Bush administration. In the first place, I hope that the president will quickly recognize the importance of addressing the problem of global warming and help to work towards something like the Kyoto treaty before too long. I also agree that it is inconsistent in preaching global free trade and then protecting its steel industry and introducing a massively subsidizing farm bill. Yes, the European Union has the Common Agricultural Policy, but at least the EU has not been zealously preaching the message of free trade.
But in this case, though America may appear to be behaving childishly by threatening a whole series of U.N. missions abroad unless it gets its way over the International Criminal Court, there are genuine concerns with it that Americans have every right to express. Romano Prodi, the president of the European Commission, may see this as yet another example of differences between Europe and America, but that does not necessarily make it America's fault.
In the first place, let us remember that when Bill Clinton signed the treaty - a cynical move in the waning days of his administration - he clearly stated that he thought the U.S. Senate should not ratify it unless it was amended in such a way that it would not threaten America's ability to act abroad. Indeed, when Mr. Clinton signed the ICC treaty the general assumption was that not one of the 100 U.S. Senators, Democrat or Republican, was prepared to vote for it. America's primary concern then and now is the risk of malicious prosecutions either of its soldiers or, more likely, of leaders such as Defense Secretary Donald Rumsfeld or the Joint Chiefs of Staff for international humanitarian crimes committed abroad by its military personnel.
But surely, you might ask, isn't this court just trying to prevent war crimes and crimes against humanity? American leaders just don't go in for that kind of thing, even if individual soldiers or units might, like those of almost every other army, have done so on rare occasions in previous conflicts. And there, in a sense, is the rub. Most of the Western governments which drafted the Rome statute that created the ICC were broadly left of center and were happy to accede to the wishes of NGOs such as Amnesty International and others who wanted to see the list of war crimes considerably expanded to include, for example, the bombing of an art gallery. This expanded definition of war crimes and the much looser definition of command responsibility - looser than at Nuremberg - mean that is very possible that Mr. Rumsfeld or his successor on a visit to Brussels or Paris might find himself under the threat of arrest for "crimes" committed by his subordinates.
This could happen even if Mr. Rumsfeld did not participate in these supposed crimes or order them or even have foreknowledge of them. In other words, there would be no question of someone like Mr. Rumsfeld being tried in an American court under these circumstances. A retrospective analogy would involve the prosecution of General Westmoreland or Secretary McNamara for failing to take sufficient steps to prevent the My Lai massacre. Henry Kissinger has been sought in Europe for what he knew as secretary of state for a coup in Chile. This scenario is far from fantastic; indeed I would suggest it is a mistake to underestimate the desire which exists in certain quarters to prosecute American or, for example, Israeli civilian leaders.
Belgium, pushing the concept of universal jurisdiction to the limit, has issued "international arrest warrants" against Ariel Sharon amongst others, though that was thrown out by a court last week. These efforts to pursue justice at any cost are in disregard of the effect which they might have on the conduct of international relations or the maintenance of international peace and security, even to the point of risking war between states. True, the International Court of Justice in The Hague has recently restored some degree of calm by affirming the "absolute immunity" of foreign ministers and, by implication, of heads of state and government as well. The president of The Hague court declared in a separate judgement that the concept of "universal jurisdiction in absentia ...is unknown in international law."
It is against this background that America is voicing its concerns. Americans may not be overwhelmed to learn that some of the left-wing governments that formerly were in place throughout Europe went out of their way to ensure that terrorist activities were excluded from the ICC's provisions relating to war crimes.
All of these are legitimate concerns. We are all against genocide, war crimes and crimes against humanity. The court is a noble idea, to be sure. If we want it to succeed we should look for ways of meeting the objections of America, India, Russia and others by finding a way of tightening-up the statutes relating to command responsibility and by giving the Security Council a co-decision role in the prosecuting process as America wants. That would be grown-up politics.