Sunday, Jun. 30, 2002

America Is Not Pleased

By JAMES GRAFF / Brussels

No more Pol Pots. No more Milosevics. No more Idi Amins. Beginning July 1, in the words of activist William Pace, "thousands of years of impunity" for authors of genocide and war crimes come to an end. With that worthy aim in mind, more than 70 countries, including all 15 members of the European Union, have ratified the 1998 treaty establishing the International Criminal Court in the Hague, which is intended to deter and if necessary prosecute any future Hitler.

Equipped for now only with a skeletal staff and housed temporarily in the former building of the troubled Dutch telecom giant KPN, the court is nevertheless ready to receive complaints and secure them for the future consideration of 18 international judges to be elected early next year. For Edmond Wellenstein, Director General of the Dutch ICC Task Force, the court's creation is "an event of joy and an event of hope for victims and their families."

But there is at least one enormous damper on all that good feeling: the intractable enmity of the United States government, which for generations has been the world's most powerful advocate of the rule of law. To U.S. Under Secretary of State Marc Grossman the new court is "an institution of unchecked power" that "undermines the democratic rights of our people and could erode the fundamental elements of the United Nations Charter." For Jesse Helms, sponsor of a bill passed by the U.S. Senate last month that calls for an invasion of the Hague to free any U.S. citizen or ally who falls into the court's clutches, the ICC is a "kangaroo court" that invites the abuse of U.S. military personnel serving around the world.

Thus it was perhaps predictable that the week leading up to the court's formal birth brought a flurry of diplomatic dispatches and fevered negotiations as signatories to the treaty establishing the court tried to head off a last-ditch effort from Washington to gut it. At the Security Council in New York, the American delegation introduced proposals that aimed to exempt from the court's jurisdiction U.N. peacekeepers from states that aren't party to the ICC. The pawn in the piece was the normally routine six-month extension of the U.N. peacekeeping mandate in Bosnia and Herzegovina. Unless blanket immunity is granted, the U.S. threatened not only to veto the U.N.'s mandate in Bosnia but also to stop paying its 27% share of the U.N.'s peacekeeping budget. The 2,200 or so U.S. peacekeeping troops in Bosnia are there as part of NATO, but other contingents — notably the Dutch and Germans — can be part of the force only because it is also sanctioned by the U.N.

France and Britain, America's staunchest allies on the Security Council, argued all last week that exempting peacekeepers could create a cascade of demands for other exemptions. Besides, European diplomats say, it isn't in the Security Council's power to recast the treaty. "With the best will in the world, we can't make commitments contrary to a treaty already signed and ratified by dozens of countries," said a French diplomatic official. A number of fixes have been suggested, including invoking in advance an article in the existing treaty that allows the Security Council to postpone any investigation by the ICC for a year. "Fundamentally, this is a matter of political will," says a British official. "My fear is that there's a decision in Washington to lock this up. If that's the case, no drafting fix will solve it."

Indeed, even if the peacekeeping dilemma is finessed, it is neither the first nor will it be the last of the Bush Administration's attempts to undermine a court perceived as an unnecessary and potentially dangerous constraint on American power. Nowhere in Europe was there any substantive opposition to signing on to the court, in part because of U.S. efforts under the Clinton Administration to create safeguards against the kind of politicized prosecutions U.S. opponents of the institution fear. In its final form, the court cannot initiate any prosecution against an alleged war criminal if his or her government launched a good-faith investigation of its own. So if an American soldier were to be cleared of such charges by an American civilian or military court, the ICC could do nothing. "We don't understand why the Americans seem to have so little faith in their own justice system," says a Dutch Ministry of Foreign Affairs official. Washington counters that it isn't its own justice system it doesn't trust, but rather the untested system of the ICC. "The ICC is required to defer to national prosecutions unless the ICC finds that the national courts are unwilling or unable to carry out that function," says a senior U.S. official. "But the decision on this is left to the ICC — which, in theory, could do anything it wanted." The distrust of the ICC is profound in the Bush Administration. Defense Secretary Donald Rumsfeld has called the ICC "particularly troubling in the midst of a difficult, dangerous war on terrorism."

But doubts existed before Sept. 11, and even before Bush took office. When he signed on to the ICC on Dec. 31, 2000, President Bill Clinton acknowledged "concerns about the significant flaws in the treaty," and the chances of it being ratified by the Senate were never strong. But the Clinton Administration argued that the U.S. was better off staying engaged than letting the ICC take form without American input. The Bush Administration wanted out altogether, and in May the U.S. effectively unsigned the treaty. By doing so, say its critics, Washington is risking not just its reputation as a purveyor of international law, but its own long-range interests. "It's not an issue of principle so much as a jihad," says Kenneth Roth, executive director of Human Rights Watch in New York. "The Pentagon hates this court, and to that end they find it easy to sacrifice peacekeeping as well. But peacekeeping is precisely what is needed in Afghanistan, and for that matter what would be needed if Saddam Hussein was brought to a fall." Says Yale Law School Professor Harold Koh: "The bad moment will be in years ahead, when the U.S. tries to rally other countries to its side, yells 'Charge!' then turns around and no one is following."

Until now atrocities have been prosecuted in ad hoc courts, like the Nuremberg Tribunal and the more recent U.N. tribunals for Rwanda and Yugoslavia. But equally condemnable actions, such as Pol Pot's decimation of the Cambodian people or Saddam Hussein's use of chemical weapons against the Kurds, have gone unpunished because there was no international consensus to try them. This new court is an attempt to remove treatment of genocide, war crimes and crimes against humanity — along with the as-yet undefined delict of aggression — from political influence. The crime alone should determine justice, not who your friends are on the Security Council. No country with the preponderance of power the U.S. now enjoys would take lightly an institution like the ICC, which it can't control. But opposing the new court is a gamble on how the future will turn out, just as supporting it is. America believes it can best master it on its own; the E.U. and the other signatories would rather have a consensual forum to deal with the worst of human depravity. The ICC is only the latest example of that yawning gap in outlook. It won't be the last.