The United States and the ICC: An Alarming Declaration to the World

Imagine this: an institution which includes the US, China, and India – that can prosecute Joseph Kony as well as Private Lynndie England of the Abu Ghraib infamy.

In Rome on July 17, 1998, 120 nations voted to create a permanent International Criminal Court (ICC) to try war crimes, crimes against humanity, crime of aggression, and genocide. Only seven nations opposed the measure, including Iraq, China, Israel and the United States.

On 11 April 2002, the ratifications necessary for entry into force of the Rome Statute of the ICC were deposited at the United Nations, opening the door to a new era in international justice. On this historic and long-awaited day, impunity was dealt a severe blow and the world took a giant step towards justice and accountability. At the time of adoption of the Rome Statute, few could have anticipated the rapid entry into force of this treaty representing every region of the world.

On 6 May 2002, in an act which shocked governments around the world, the United States formally renounced its signature of the Rome Statute of the ICC, authorized on 31 December 2000 under former President Bill Clinton. Speaking on behalf of the Bush Administration, Under Secretary for Political Affairs Marc Grossman described the Rome Statute as a “flawed outcome,” built on a “flawed foundation.” Mr. Grossman outlined, in considerable detail, the objections of the United States towards the Rome Statute, claiming these reservations were serious enough for the US to withdraw its participation in the process.

Washington has not only refused to join the Court, it has actively lobbied against it. In response to concerns that the Court would try US soldiers or officials, Washington approached countries around the world seeking to conclude Bilateral Impunity Agreements (BIAs), or so called “Article 98” agreements. These agreements prohibit the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and US employees (including contractors) and nationals. These agreements, which in some cases are reciprocal, do not include an obligation by the US to subject those persons to investigation and/or prosecution.

The reason for all this? Simply put: the U.S. is “the greatest purveyor of violence in the world today” (MLK, 1967)

By omitting itself from the ICC, the U.S. is indirectly confirming to the world that:

  1. Washington will adhere to a two-tier justice system, one for the rest of the world and one for Americans.
  2. Washington is keenly aware of the role it plays in sponsoring terrorism across the world.

Here’s is the official language from the American Service-Members’ Protection Act (ASPA) which was signed into law in response to the creation of the ICC:

“to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party.” (H.R. 4775)

The law authorizes the President to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”.

This has led to the nickname The Hague Invasion Act, since such freeing of US citizens by force might only be possible through an invasion of The Hague, Netherlands, the seat of several international criminal courts and the seat of the Dutch government.

The Act prohibits federal, state and local governments and agencies (including courts and law enforcement agencies) from assisting the Court. For example, it prohibits the extradition of any person from the United States to the Court; it prohibits the transfer of classified national security information and law enforcement information to the Court; and it prohibits agents of the Court from conducting investigations in the United States.

Not surprisingly, the Act also prohibits U.S. military aid to countries that are party to the Court with exceptions for NATO members and countries which have signed the BIA’s.

It’s key to remember that the ICC is not a threat to US sovereignty. The real threat is that the ICC represents the strengthening of the international justice system which has the potential to challenge the US as a hegemonic super power.

And there lays the rub!

In drafting the U.S. Constitution, Madison and the other founders confronted very much the same dilemma that the world community confronts today in dealing with American hegemony. The question, as the framers posed it, was why the powerful should have any incentive to obey the law. Madison’s answer, in the Federalist Papers, was that the incentive lies in an assessment of future circumstances — in the unnerving possibility that the strong may one day become weak and then need the protection of the law.

It is the “uncertainty of their condition,” Madison wrote, that prompts the strong to play by the rules today. But if the future were certain, or if the strong believed it to be certain, and if that future forecast a continued reign of power, then the incentive on the powerful to obey the law would fall away. Hegemony thus sits in tension with the principle of equality.

This is the great Madisonian dilemma confronted by the international community today.

Thanks for reading,

Notes,

The United States’ Isolated Struggle against the ICC
https://www.globalpolicy.org/component/content/article/164/28438.html

Why the Security Council Failed:
http://www.nytimes.com/cfr/international/20030422faessayv82n3_glennon.html?pagewanted=8&_r=0

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