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COMMENTARY
White House hobbles world
security
By Harpinder Athwal and
Maggie Gardner
(Posted with permission from Foreign Policy in Focus)
The current United States administration has a
near-religious aversion to the new, permanent
International Criminal Court (ICC). The court, now with
90 member countries, was established to ensure that the
rule of law prevails in places where the only
alternative is impunity for the most gut-wrenchingly
vicious crimes against humanity. Its opponents in the
administration, however, claim that the court will
become a forum for politicized prosecutions. In fact,
they are so sure that the court is out to persecute US
citizens that they are willing to undermine some of the
most basic foundations of international security to
protect against this perceived, but nonexistent, threat.
For example, the US insisted on UN Security
Council renewal on June 12 of a resolution exempting
non-ICC countries' officials and personnel participating
in UN-authorized missions from accountability before the
ICC. The renewal for another year of the accountability
exemption is not popular with council members. France,
Germany and Syria abstained from the vote, and in an
open meeting more than 40 US allies spoke out against
the resolution.
These allies repeated the
laundry list of reasons why the ICC does not pose a
credible threat to the US, making this resolution
unnecessary. Countries that contribute personnel to UN
missions already retain full jurisdiction over their
citizens through Status of Mission Agreements (SOMAs).
Even without these SOMAs, the ICC could only act if no
relevant national court were able and willing to
investigate the matter; unless the US was clearly
shielding someone suspected of committing a mass
atrocity, there is no doubt that the ICC would defer to
the US judicial system. In addition, the ICC's Rome
Statute is full of safeguards to prevent frivolous
prosecutions, many of which originally were put in place
by the US. The ICC is not a rogue court. Its highly
qualified judges, prosecutor and administrator (all of
whom are citizens of major US allies) are concerned with
issues such as the use of child soldiers in the Congo
and systematic rape in Myanmar, not with political cases
against US citizens.
More disturbing than the US
administration's continuing insistence on painting the
ICC as a bogeyman is its seeming disregard for the
illegality and dangerous precedence of its actions. At
the Security Council, our allies voiced the same
concerns again and again: This sort of blanket immunity
is not allowed under the Rome Statute; in granting it
regardless, the Security Council is overstepping its
authority by amending the treaty of an independent
multilateral institution without the consent of its
members. By placing peacekeepers above accountability
for the most horrific crimes, the Security Council is
discrediting the entire enterprise of the ICC.
As UN Secretary General Kofi Annan concluded,
such immunity undermines "not only the authority of the
ICC but also the authority of [the Security] Council,
and the legitimacy of United Nations peacekeeping". This
is no small loss, for the UN peacekeeping structure
greatly benefits the US, enabling us to help build
security around the world while bearing only part of the
cost and risk.
Compromising
security
The administration is compromising
security in conflict-ridden countries not only by
undermining UN peacekeeping operations, but also by
threatening to cut off most military assistance to these
countries. Under the American Servicemembers' Protection
Act of 2002, most countries that belong to the ICC but
do not conclude an agreement with the US exempting all
US citizens and all government and military employees
(past and present, including non-national contractors)
lose their military aid on July 1 unless the White House
has granted them waivers. Some 44 countries had signed
such agreements as of June 25, though very few had
ratified them. Almost all of these countries are either
poor and small (including Palau, Togo, Nauru and The
Gambia) or struggling to restore order and desperately
in need of US assistance (such as Sierra Leone, Rwanda
and East Timor).
Not all countries reliant on US
assistance for basic security, however, have
capitulated. Colombia made clear its intention not to
sign one of these bilateral immunity agreements, as did
Croatia. Six of the seven NATO accession countries are
also stalling (Romania signed one but has not ratified
it). For these countries, it is a matter of principle
and of law. Many countries have concluded, in the words
of the European Union, that "entering into US agreements
- as presently drafted - would be inconsistent with ICC
states parties' obligations in regards to the Rome
Statute", making such agreements illegal for them. For
some countries, there's also concern about setting a
double standard, especially for those being pressured by
the US administration to turn their own citizens over to
other international courts. As Croatian President
Stjepan Mesic put it in a recent interview, "It would be
very difficult to explain to the Croatian public how we
can have one way of treating our own citizens, and
another for citizens of another country."
Rejecting international justice
As a
result, the US administration is demanding that
countries choose between much-needed aid from the US and
their legal obligations. The White House, in
appropriating this aid, deemed that it will "strengthen
the security of the United States and promote world
peace". This is not assistance that we should be
terminating just to make a point about a court that
can't hurt us. Nor should we be encouraging new
democracies to disregard their international obligations
and abandon their efforts to ensure law and order within
their own borders.
Ending aid meant to
strengthen our national security is not the only
negative outcome of this adamant campaign for bilateral
immunity agreements. In the first part of June, the US
administration sent a formal demarche to all 15 European
Union member states, declaring that their relations with
the US were at risk - not over trade barriers, not over
lack of cooperation in the "war on terrorism", not over
Iraq or the Middle East, but over the ICC. The European
Union had sent letters to candidate countries drawing
their attention to EU conclusions about the illegality
of the US agreements, a move that this demarche referred
to as "unfriendly acts", diplomatic speak usually
reserved for openly hostile actions.
From
peacekeeping to military aid to good relations with our
strongest allies, this administration seems willing to
sacrifice some of the best tools we have for
strengthening international security, all over an
institution meant to deter genocides, ethnic cleansing
and the most egregious and systematic human rights
atrocities. Since the end of World War II, the US has
worked to develop democracies and build stabilizing
international institutions. US administrations have been
instrumental in building and promoting the World Bank,
the International Monetary Fund and the UN to
incorporate developing nations into international
community structures. Under US leadership, the Nuremberg
and Tokyo trials and the ad hoc tribunals for Rwanda and
the former Yugoslavia established the precedent for
holding individuals accountable for committing genocide,
war crimes and crimes against humanity.
In
contradiction to this American legacy, the
administration of US President George W Bush has now
turned its back completely on the ICC. When it comes to
security and global problems, our leaders think we can
go it alone, but that mixture of arrogance and machismo
will not make us safer. Rather, dismantling
international law and disengaging with the world will
only open a Pandora's box of conflicts, impunity,
terrorism and collapsed states; and there will be no one
left to help us close it.
Harpinder Athwal
hathwal@wfa.org
and Maggie Gardner information@wfa.org
are the communications manager and International
Criminal Court program manager, respectively, for the
World Federalist Association. They wrote this for
Foreign Policy in Focus.
(Posted with
permission from Foreign Policy in
Focus)
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