Wednesday, March 11, 2009

The International Criminal Court

David Kaye, a State Department lawyer in the Clinton and Bush administrations, provides some interesting information on the International Criminal Court and the US refusal to take any part in it in an op-ed piece in the Los Angeles Times. He provides a brief thumbnail sketch of how the proposed Court was intended to operate, how the Clinton administration took an active part in its initial set-up and even "signed" the UN statute authorizing the court, knowing full well that provisions within that statute would be impossible to get through Congress.

Then came the Bush administration:

The incoming Bush administration saw things differently. Soon after taking office, the new president ordered the Rome Statute "unsigned," and his administration embarked on an effort to undermine the ICC, encouraging other nations to promise not to hand over Americans to its jurisdiction under any circumstance.

Led by Jesse Helms, the late Republican senator from North Carolina, Congress imposed sanctions against governments that joined the court, even cutting off military assistance to some. Congress prohibited U.S. cooperation with the court and authorized the president to use any necessary means to rescue Americans who might be held by the court. Europeans, sensing the hostility, dubbed the law "The Hague Invasion Act."


The result of the "unsigning," of course, meant that the US would have no further contact with the Court, nor would it add input into the development of the rules under which it would operate. It also meant that intelligence sharing, which had been traditional in the past for investigations into crimes against humanity, ceased. Once again, the sense of American "exceptionalism" kicked in, and not in a nice way.

Of course, with the benefit of hindsight, it's easy to see why Bush reversed course when it came to dealing with the ICC. The invasion of Iraq, renditions, the use of torture in interrogating suspected terrorists, the long term detention of alleged terrorists without charge or trial: all would clearly be seen as violations of international law and would subject Americans, especially high ranking public officials, to the jurisdiction of the ICC, and Bush and his cronies wanted no part of that.

Mr. Kaye urges the new administration to re-engage with the International Criminal Court, even if joining would still not be approved by Congress.

Closer engagement also would allow the U.S. to help shape policy and legal developments in ways that meet its concerns. Today, we have little ability to influence the court's thinking. As a consequence, many basic principles of international law are being developed without U.S. input.

Not all the action is in the courtroom either. Parties to the ICC are considering whether and how to amend the Rome Statute to include the crime of aggression -- the unlawful use of military force. Our ability to shape the court's approach to this crime is limited unless we take prompt steps to play an active role.


108 countries are members, including most of Western Europe, Latin America and Africa, as well as Canada, Mexico, Australia and Japan. The US is the lone major hold-out and our contacts at the present are minimal, at best. The re-engagement Mr. Kaye calls for is the very least that the US should consider. Fears that our national sovereignty would be threatened are baseless. If we are harboring criminals of the sort the ICC is and should be interested in, then we are complicit, especially if there is no attempt by the US to investigate and prosecute those criminals. That kind of national sovereignty is not worthy of the name.

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3 Comments:

Blogger Douglas Watts said...

Excellent and timely piece.

Thanks.

Doug Watts

4:25 AM  
Blogger Woody (Tokin Librul/Rogue Scholar/ Helluvafella!) said...

It's almost as if they PLANNED on overthrowing the Constitution, innit?

In advance.

Conspiratorially...

nobody could EVER anticipated that...

could they?

Has Obama pledged to revisit USer membership in the ICC?

I didn't think so...

8:15 AM  
Blogger john chapman said...

What Diane writes so eloquently is very interesting. She is absolutely right that even Americans should be held accountable for war crimes, even if it takes the ICC (International Criminal Court) to make that happen.

The ICC does, however, have its share of problems in enforcing justice. Without his presence, the ICC recently found the president of the Sudan, al-Basher, guilty of crimes against humanity. The ICC issued a warrant for his arrest. The issuance of that warrant is very much in doubt. What is not in doubt are the extra problems that the ICC may cause for the refugees living in the Darfur region and southern Sudan by issuing a warrant that it cannot act upon.

To actually arrest al-Bashir will almost certainly involve the use of rebel troops, which will undoubtedly be pitted against the government forces and the Janjaweed militias. It is commonly believed that these opposing groups are nearly equally matched, hence the lull in the fighting. It is guaranteed that any attempt to arrest Mr. Bashir will cause much blood to flow.

This shows the possible irresponsibility of a powerless court.

That, of course, in no way undermines what Diane has written about the United States and the possible prosecution of Americans who engage in criminal war activity.

9:00 AM  

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