International Criminal Court’s Rocky Start

U.S. Refusal to Participate Draws Criticism

WASHINGTON, D.C., JULY 13, 2002 ( On July 1 the International Criminal Court (ICC) officially came into existence. Its birth has been troubled by a fierce debate over the United States’ refusal to form part of the tribunal.

President Bill Clinton signed the Rome Treaty establishing the ICC just before he left office, but the document was never sent to the Senate for ratification. Then in May, Secretary of State Colin Powell announced that the United States would be “unsigning” the treaty, the Associated Press reported May 6.

Undersecretary of State Marc Grossman explained the reasons for the U.S. rejection of the treaty, during a conference at the Center for Strategic and International Studies.

In a State Department text released May 6, Grossman reaffirmed the U.S. commitment to justice and the rule of law, but added: “We believe that states, not international institutions, are primarily responsible for ensuring justice in the international system.”

Grossman said the United States also believes the ICC will undermine the role of the U.N. Security Council in maintaining international peace and security. He also affirmed that the statue establishing the ICC “creates a prosecutorial system that is an unchecked power. … The treaty created a self-initiating prosecutor, answerable to no state or institution other than the court itself.”

Another U.S. objection was that “the treaty threatens the sovereignty of the United States.” The power of the court to detain and try American citizens, even if the United States is not a party to the ICC, is not acceptable, Grossman said.

A further U.S. concern is that its military forces — which Grossman said are spread in “close to 100 nations around the world conducting peacekeeping and humanitarian operations and fighting inhumanity” — could be “exposed to the prospect of politicized prosecutions and investigations.”

Conflict over peacekeeping missions

Debate intensified when the United States threatened to block the renewal of the U.N. peacekeeping operation in Bosnia because of a refusal by the United Nations to exempt American troops from possible ICC prosecution, the Associated Press reported July 1.

The U.S. ambassador to the United Nations, John Negroponte, warned that “peacekeeping in general” was at stake and he indicated that the United States might try to end the 14 other U.N. peacekeeping missions if its demand for immunity isn’t met.

This move by the United States was widely criticized. A typical example was an opinion article by Kenneth Roth, executive director of Human Rights Watch, published July 1 in the Financial Times. The real reason behind “Washington’s blackmail,” Roth charged, is the belief by an influential group in the Bush administration “that U.S. military and economic power is so dominant that the U.S. is no longer served by international law.”

Roth continued: “Better to negotiate issues case-by-case from a position of strength, they contend, than to be bound by international law in ways that might prove inconvenient. This attitude can be seen in the U.S. rejection of not only the ICC but also treaties ranging from climate control to small arms.”

After a heated debate, the U.N. Security Council adopted a resolution on Friday declaring that for one year, the ICC would not open proceedings against any U.N. peacekeeping personnel from countries that do not accept the court, the Associated Press reported the same day. The exemption is renewable.

U.S. vs. U.N.

Criticism of the U.S. position regarding the ICC, particularly from European countries, has been abundant. Cherie Booth, a barrister specializing in human rights law and wife of British Prime Minister Tony Blair, published an essay in the Guardian on June 13 titled “U.S. lets down world justice.” Booth admitted that the statute of the ICC “is not perfect.” But she argued that the court “will act only where national jurisdictions cannot.”

Writing in the Spanish paper El País on April 11, Judge Baltasar Garzón, well known for his actions in seeking the prosecution of Chilean ex-leader General Augusto Pinochet, declared his surprise at the U.S. opposition to the ICC.

Garzón argued that the ICC is the first attempt in peacetime to create, in a permanent form, a solution to serious crimes against humanity. It represents a peaceful initiative designed to fill the legal vacuum on matters relating to terrorism, genocide and war crimes.

The United States “was right to seek safeguards to ensure that the ICC would be used only for its intended purpose: to prosecute perpetrators of genocide and other crimes against humanity — not pursue some politically motivated vendetta against the United States,” wrote Chris Patton, European Union commissioner for external relations, in the Washington Post on July 9.

But, he continued, the United States is wrong in rejecting the ICC. Patton maintained that the ICC is complementary to national courts, and therefore will not present a threat to U.S. sovereignty. Moreover, investigations can proceed only after a pretrial chamber has determined there is a reasonable basis for action, Patton explained.

Another safeguard for the United States is the provision of the ICC Statute that the U.N. Security Council can decide to block prosecutions for fixed periods. The United States “is happy enough to sit in judgment on others,” noted Patton. But it “now seems to be saying it must never itself be put in the dock,” he concluded.

Zenit reported July 3 that the Vatican has offered a symbolic contribution to the trust fund established by the United Nations for the workings of the ICC. John Paul II has spoken positively of the ICC in his messages for the World Day of Peace in both 1999 and 2000.

In the part of the message for 2000 that deals with the topic of crimes against humanity, the Pope says: “Here an important step forward was taken with the establishment of an International Criminal Court to try such crimes, regardless of the place or circumstances in which they are committed. We must thank God that in the conscience of peoples and nations there is a growing conviction that human rights have no borders, because they are universal and indivisible.”

To be fair to the United States, it must be noted that many major powers have so far refused to join the ICC. For example, Russia, China and India have refused to sign or ratify the treaty. As well, the way the United Nations handles human rights issues, with the annual meetings of the Human Rights Commission refusing to condemn China for its abuses for example, is open to criticism.

The solution for the United States may be not to refuse to participate, but rather to work for reforms from within. Samantha Power advocated as much, in an opinion article July 10 in the Wall Street Journal. Power, a former journalist and now the executive director of Harvard’s Carr Center for Human Rights, is the author of the recently published book, “A Problem from Hell: America and the Age of Genocide.”

She argued: “U.S. interests are greatly undermined by policies antithetical to American values. And U.S. security will best be advanced if genocide and crimes against humanity are suppressed and their perpetrators punished.” The ICC may not be perfect, but the influence of the U.S. could be important in determining its future direction.

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