The world’s first global court has opened for business at The Hague, as the fanfare for the christening of the International Criminal Court featured a largely unnoticed warning United Nations Secretary General Kofi Annan fired at Prime Minister Tony Blair and President George W. Bush.
Annan spoke last Tuesday at the opening ceremony for the ICC, a court he believes will call to account “persons who … commit unspeakable crimes.” The secretary general pointed out that the model for the court “… had to be carefully evaluated, in particular, the implications such a court might have for the delicate process of dismantling tyrannies and replacing them with democratic regimes. …”
The 500 guests, assembled royalty, heads of state and diplomats understood the implied jurisdiction of the court over Blair and Bush if they proceed to war with Iraq minus permission of the U.N. Security Council. The following day, the Washington Post reported that “British officials also expressed fresh concern that failure to obtain a resolution authorizing war against Iraq would expose them to a potential prosecution by the newly established International Criminal Court with jurisdiction over war crimes.” The ICC cannot prosecute “crimes” committed prior to its effective institution date, July 2002.
Yesterday, the U.S. and UK decided not to bring another resolution to a vote in the Security Council in the face of a threatened veto from France, and last night Bush gave Saddam Hussein and his sons a 48-hour deadline to leave Iraq or face war.
Annan stated yesterday that without the support of the Security Council, “[the war's] legitimacy will be questioned and the support for it will be diminished.”
Why the delay?
Observers last week speculated about why Bush was delaying military intervention in Iraq. Why was the U.S. president willing to seek yet another resolution from the U.N. Security Council? Most saw the president as “going the extra mile” diplomatically. Others contend that Bush was rewarding his ally, hoping to boost Blair’s sagging popularity at home. But quieter voices saw another motive: to provide legal cover for the British prime minister whose nation is a state party to the ICC treaty.
The United States did not ratify the ICC treaty.
The ICC is a permanent court modeled on the Nuremberg War Crimes Tribunal. The United States fiercely objected to the court, whose jurisdiction covers genocide, ethnic cleansing and “war crimes,” in part because it also plans to prosecute unspecified “crimes of aggression.” Yet, with the United States at serious odds with its traditional allies, some Americans have asked if the 18 judges from various nations who sit on the new court can be trusted to be impartial. As one U.S. diplomat commented, “One nation’s aggression is another country’s defense.”
Another U.S. official noted, “The ICC is just a sword to hang over the head of any nation that has the temerity to put national interests before United Nations’ gamesmanship. The U.S. Congress is the authority for U.S. military operations, not the U.N. ”
Deep concern for changing geopolitical lines of power has called into question the viability of global institutions. Since the U.N.’s Human Rights Commission ousted the United States and seated Libya, Americans and others no longer view the Commission as a serious organization. Fundamental assumptions about the United Nations are questioned: Should nations with gross human-rights abuses be considered members in good standing or eligible for positions on the Security Council or Human Rights Commission?
Proponents of the ICC have sharply criticized the United States for refusing to ratify the treaty. Former President Bill Clinton signed the treaty as preparation for sending it to Congress for ratification. President Bush rescinded that signature when he took office. U.S. refusal to take part in the court has angered European allies who see that refusal as yet another example of U.S. unilateralism. The U.S. foresees politically motivated prosecutions of American leaders and military personnel. Even the implied threat of prosecution against Americans amounts to diplomatic blackmail.
Under the guidance of then-Sen. Jesse Helms, R-N.C., the United States passed the American Service-members Protection Act in 2001 to shield servicemen from the long reach of the ICC. The Helms measure authorized the president to order any “necessary action” required to rescue U.S. personnel seized by the ICC.
In addition, the Bush administration has quietly negotiated bilateral agreements with 24 nations to insure that U.S. citizens are not extradited to the ICC without the express permission of the U.S. government. Nations that have signed the agreements include some key Middle Eastern countries, including Afghanistan. John Bolton, U.S. undersecretary of state for arms control, acknowledged that the U.S. was concentrating its non-extradition negotiations on countries in Asia and the Middle East.
These negotiated non-extradition treaties provoked European Union foreign ministers, who adopted a memorandum seeking to bar any EU country from entering into “impunity agreements” with the United States. Eastern European nations with hopes of joining the European Union also were warned not to sign agreements with the United States lest they risk their future admission to the EU. Supporters of the ICC argue that no one accused of crimes against humanity, regardless of nationality, should be exempt from prosecution by the court, saying such exemption undermines the mission of the court.
Various EU officials criticized the United States in June for forcing the United Nations to adopt a resolution that exempted citizens of non-signatory states (to the ICC) who were on duty in authorized U.N. peacekeeping operations. When Security Council members balked at exempting nationals of non-treaty nations from ICC jurisdiction, the United States vetoed the extension of the U.N. mission in Bosnia-Herzegovina and declared it would remove U.S. troops from the region.
While 139 nations have signed the “Rome Statute,” as the ICC was known before it was instituted in July, only 89 nations have ratified the ICC treaty. Significant nations other than the United States have declined to ratify, including China, India and Russia.
Britain’s Cabinet Secretary Sir Andrew Turnbull reported that a legal study was under way seeking to protect British citizens involved in military operations in Iraq. “No civil servant should be asked to take action unless it is legal,” Sir Turnbull said.
International legal experts differ. Many believe that existing U.N. resolutions concerning Iraq’s successive failures to comply with U.N. directives provide sufficient legal cover for leaders and military personnel.
The action of individual soldiers and not the consensus of nations about the legal use of force is primary, say legal experts. Theoretically, depending on the composition of the U.N. Security Council in any given year, the use of force may or may not be sanctioned. That authorization is increasingly the function of political ties and power plays rather than an objective standard for intervention, say U.N. observers.
Even so, Johns Hopkins professor of law Ruth Wedgwood is confident that existing U.N. resolutions provide all the legitimacy required: “The cease-fire resolution, 687 and its predecessor 678, which authorized the use of force to expel Iraq from Kuwait, are sufficient to use force now. Those resolutions still stand.”
Offered Wedgwood, “I am quite prepared to defend Tony Blair in the International Criminal Court.”