Stonewalling the ICC (11/02)

With the stroke of a pen on Aug. 5, President Andrés Pastrana made Columbia the 77th country (out of 120 signatory countries) to ratify the International Criminal Court (ICC) treaty. Known as the Rome Statute, the world tribunal acquired its 60th endorsing nation-state earlier this year. That allowed the tribunal to commence its jurisdiction on July 1 as the first permanent court capable of investigating and bringing to justice individuals worldwide who commit crimes of concern to the international community. It is scheduled to hold its first official meeting in September.

Distinguished from the International Court of Justice in The Hague, whose jurisdiction is limited to sovereign nations, the ICC will be able to indict individuals. Crimes within its jurisdiction would include genocide, mass rape, war crimes, widespread murder of civilians, and other crimes against humanity.

However, the court’s jurisdiction isn’t retroactive, so only crimes committed after July 1 will be prosecuted. In addition, the ICC will prosecute only if national courts are unwilling or unable to act within their jurisdiction.

The ICC treaty was adopted at a UN conference in Rome on July 17, 1998; 120 countries voted to sign, but seven countries, including the US, opposed the treaty and 21 abstained. The new court was the result of work by the ICC Preparatory Committee, convened by the UN General Assembly in 1996. The UN was reluctant to create more ad hoc international criminal courts, which it had done for war crimes in Rwanda and Yugoslavia during the 1990s. The ICC extends a worldwide movement that began with the 1945 Nuremberg and Tokyo trials and was spurred along by a 1948 UN resolution recognizing the need to create such a body.

During its inaugural year, the new tribunal has won worldwide praise. "Only through justice can those who have suffered come to terms with the past, find peace and envisage a future without hate or resentment," said Ambassador Mirza Kusjugicespite of Bosnia and Herzegovina. "To meet such goals, we, the international community, have the responsibility to ensure that this nascent institution fulfills our hopes of becoming an impartial and efficient forum and a powerful tool of international justice." Cambodian Ambassador Sun Soon added, "It is our sincere obligation to join the international community to help bring an end to impunity, and thus we will do our utmost to be a fully supportive member of the International Criminal Court."

Pressing for Impunity

Despite such praise, the Bush administration, along with right-wing lawmakers such as Sen. Jesse Helms and Rep. Tom DeLay, have strongly voiced their opposition to the ICC on the ground that the court could subject US citizens, including soldiers, to politically motivated prosecutions abroad. Thus, on May 6, the Bush administration revoked the US support extended by former President Clinton. Like Bush, Clinton had reservations about the court’s powers to prosecute US citizens. However, Clinton at least allowed members of his administration to participate in treaty debates, including the still lingering issue of what constitutes aggression.

Bush’s "unsigning" of the Rome statute was sharply criticized by human rights and world leaders. In response to the argument that ICC would become a ploy for political prosecutions, Heather Hamilton, director of programs at the World Federalist Association, argued that "this statement ignores the ample safeguards provided in the Statute. Every major US ally, including all NATO members except Turkey, has indicated their understanding of this and supports the treaty." William R. Pace, convenor of the Coalition for the Criminal Court, added, "This court has been painstakingly negotiated by UN member states during an eight year process. It arises out of the will of democratic nations to ensure that the most serious crimes no longer be met with impunity; these countries will work to ensure that the court succeeds."

Nonetheless, the Bush administration has launched a combined diplomatic and legislative assault. Utilizing the American Servicemember’s Protection Act, a new antiterrorism law authored by DeLay, the US State Department invited foreign ambassadors to Washington in early August, warning them that the Act prohibits military aid to countries that are a party to the ICC treaty. The new law was passed by Congress in July with broad bipartisan support, and quickly signed by Bush.

The State Department briefing preceded UN Security Council Resolution 1422, a July concession that exempted US peace keepers who may have committed crimes under the court’s jurisdiction. The Council was reacting to the Administration’s threat to veto the extension of the UN peacekeeping mission to Bosnia, scheduled to expire on July 3. Not satisfied with a one-year exemption, however, the Bush Administration is pushing for longer exemptions.

Other key provisions of the Servicemember’s Protection Act include prohibitions on US cooperation with the ICC by any government body, along with a ban on US participation in peacekeeping — unless immunity from the ICC is guaranteed for US personnel. There is also an "invasion of The Hague" provision, authorizing the President to "use all means necessary and appropriate" to free US personnel detained or imprisoned by the ICC. Hammering the point home, DeLay spokesman Jonathan Grella told the New York Times (NYT), "We have said numerous times that we have to do whatever it takes to protect our service members from this rogue court."

Double Standards

The Administration’s efforts to undermine the ICC treaty have drawn sustained international criticism from Human Rights Watch, Amnesty International (AI), the International Commission of Jurists (ICJ), and other international groups. "US fears that its peacekeepers will face politically motivated prosecutions are unfounded as the ICC can only exercise its jurisdiction once remedies in national courts are exhausted," argued the ICJ. "The [threatened] US veto appears to be the last of a series of attempts to threaten the integrity of the Rome Statute and the effectiveness of the ICC."

According to AI, the US pressed other members of the Security Council "to do what the majority of UN member states unequivocally oppose. Investigations and prosecutions for the gravest crimes should never be obstructed, nor should double standards ever be created for peacekeepers or anyone else. The changes, made after weeks of wrangling in the Security Council when the US held approval of peacekeeping operations hostage as long as its demands for the exemption were not met, are without substance."

An Aug. 13 NYT editorial called the State Department’s warning briefing "the latest gambit" in the Bush Administration’s efforts to exempt US citizens from ICC jurisdiction. "The court is designed to ensure that a future Slobodan Milosevic, Saddam Hussein or Muammar el-Qaddafi cannot evade justice by manipulating his country’s legal system," argued the editorial. "It is not designed to frame Americans on trumped-up charges." On the same day, the European Union (EU) warned 13 prospective member nations not to sign any accord with the US exempting US peace keepers from the Rome statute. Senior official Romano Prodi advised those countries to wait until the EU reached a uniform position.

Given the ongoing efforts against terrorism, diplomatic sparring over the ICC is unfortunate, according to Yale University professor Harold Hongju Koh, former assistant secretary of state in the Clinton administration. In an Aug. 14 NYT article, he noted, "The first priority should be maintaining a coalition. Instead, the administration is creating a huge political issue with our closest political allies over a small legal problem."

Sam Cacas is a San Francisco-based writer. He can be reached at For more on the ICC, visit the following web addresses: Human Rights Watch Fact Sheet,; worldwide coalition,; U page on ICC,; and non-governmental US coalition,