An international court that exempted U.S. citizens
would not sit well with other nations
by Doug Cassel
The American Prospect magazine, August 2001
A bill passed by the House in May-mislabeled the "American
Servicemembers Protection Act"-seeks to achieve by intimidation
what the United States could not get by negotiation: a blanket
exemption for Americans from the International Criminal Court
(ICC) for genocide, war crimes, and crimes against humanity.
In 1998 a UN diplomatic conference in Rome agreed to the ICC
treaty, which has since been signed by 139 countries and has acquired
36 of 60 necessary ratifications, with more expected soon. Supported
by all European democracies, the ICC is a done deal. It will likely
open for business in The Hague next year- without U.S. participation.
A divided Clinton administration could never quite bring itself
to embrace the ICC, which could theoretically (although not likely)
prosecute U.S. officials or soldiers. The Pentagon argued that
U.S. troops are uniquely called on for peacekeeping and assorted
interventions worldwide and ought not to be at risk of prosecution
abroad for their good deeds. The administration also had its eye
on the Senate, where Jesse Helms declared any treaty for an international
court that could prosecute U.S. citizens "dead on arrival."
But an ICC that would exempt U.S. citizens and no one else
did not sit well with other nations. U.S. State Department negotiators
managed to extract extensive safeguards but not an ironclad guarantee
that no U.S. citizen could ever be tried by the court.
Still, the Clinton team was reluctant to repudiate the ICC.
Then-Secretary of State Madeleine Albright had publicly endorsed
the principle of international justice for war crimes. The United
States had led successful efforts to establish ad hoc international
courts for Yugoslavia and Rwanda and was still pushing for the
prosecution of Saddam Hussein. To reject the court outright could
undermine U.S. foreign-policy interests and offend the domestic
human rights lobby-not exactly a juggernaut but conceivably a
factor in a close election.
The upshot was ambivalence. On December 31, 2000-the last
day allowed-Clinton finally authorized David Scheffer (then the
top State Department war-crimes official) to sign the ICC treaty.
At the same time, the president declared that he opposed ratification
of the treaty in its present form. The United States was signing
only to stay in the negotiations, in hopes of a better deal. For
his part, Scheffer said that the United States would not initially
be a party to the ICC but would try to be a "good neighbor."
Republicans were outraged. President-elect George W. Bush
made it clear that he opposed the treaty and would not send it
to the Senate for ratification. But mere abstinence was not enough
for congressional Republicans. Declaring war on the ICC, they
revived the servicemembers bill, which was originally introduced
a year ago by Senator Helms and four House committee chairs. The
Clinton administration had opposed the plan, partly because it
could undercut the United States in ongoing negotiations. Now,
with Clinton out of office, it has passed the House.
Despite its politically irresistible title, the bill does
nothing to protect U.S. troops. As the American Bar Association
pointed out in House committee hearings last July, keeping GIs
out of the ICC will merely relegate them to the less tender mercies
of the courts of foreign potentates.
The ruse of protecting GIs, however, hardly matters to the
bill's chief congressional sponsors, House Majority Whip Tom DeLay
and Senator Helms. They see the bill as a vehicle to pursue a
broader ideological objective: a foreign policy based on unilateralism
rather than on multilateral cooperation. If it seems calculated
to offend other nations and to thwart U.S. participation in international
peacekeeping, so much the better.
The bill would prohibit the United States from cooperating
with the ICC in any way. If a fugitive indicted for genocide arrived
in Chicago, we could not turn him over to the ICC. If a U.S. spy
satellite filmed ethnic cleansing, we could not share the photos
with the ICC. The bill protects future Saddam Husseins more than
it does American servicemembers.
And it interferes not only with justice but also with peace.
U.S. troops would be barred from UN peacekeeping operations unless
the UN Security Council exempted Americans from ICC jurisdiction-fat
chance-or, alternatively, countries where GIs might go agreed
not to turn Americans over to the court. This could
block airlifts of U.S. troops through Germany and other countries
that will be parties to the ICC. Additionally, the United States
wouldn't be able to give military aid to any country that is a
member of the ICC except for NATO members, other key allies, and
nations that agreed not to surrender Americans to the court. Since
all ICC members are obligated to comply with ICC orders to turn
over suspects, U.S. efforts to get them to do otherwise would
amount to bullying them into violating the spirit of their treaty
Finally, the bill authorizes the U.S. president to use "all
means necessary and appropriate" to free Americans detained
by the ICC. In diplomatic parlance, such language includes military
action. While it's hard to imagine the U.S. Marines actually landing
in The Hague, for Congress to wax bellicose against the ICC will
win us neither friends nor respect.
If only extremists supported the servicemembers bill, one
might dismiss it with the ridicule it will evoke among our allies.
But it passed the House-on the heels of the United States' failure
to be re-elected to the UN Human Rights Commission-by more than
a two-to-one margin. It was also backed in a letter signed last
November by Secretary of Defense Donald Rumsfeld, as well as 11
former national-security officials, including Caspar Weinberger
and Henry Kissinger. Most of the signers were from Republican
administrations, but former Carter adviser Zbigniew Brzezinski
and Clinton CIA chief James Woolsey were also on board.
These eminences counsel against subjecting U.S. troops to
"an unaccountable international prosecutor operating under
procedures inconsistent with our Constitution." Their concern
is not warranted. Far from being unaccountable, the prosecutor
will be elected by state parties to the ICC-the great majority
of which are democracies-and removable for cause. He or she can
initiate investigations and prosecutions only after giving notice
to all states affected and securing approval by a three-judge
ICC panel. Appeals may be made to a five-judge panel. The United
States could block even these carefully circumscribed procedures
by simply undertaking its own investigation. The outcome of the
U.S. proceedings would stand, unless they were deemed a sham by
the ICC judges.
Also, the ICC does not violate our constitutional rights.
Defendants before the court are entitled to a defense and due
process. Contrary to some erroneous claims, they are guaranteed
the right to confront witnesses and not to incriminate themselves.
The one missing right-trial by jury- is in any case not afforded
to servicemembers in a U.S. court-martial, either. Even for civilians,
jury trials are peculiar to common-law systems. Juries are not
used in most other countries, including many to which we routinely
extradite our citizens for trial.
The real concern of the former officials may be their claim
that the prospect of prosecution could "chill decisionmaking
within our government." But that prospect already exists.
U.S. courts or courts-martial can put American officials and troops
on trial for genocide, war crimes, torture, mass murder, and so
on. (To the extent that gaps remain in our laws, they can and
should be corrected by legislation.)
One can only hope that the broader implications of the servicemembers
bill will be weighed with greater deliberation in the Senate than
they were in the House. If this policy toward the ICC becomes
law, it may make those countries that voted against the United
States for the UN Human Rights Commission look wise indeed.
Doug Cassel is the director of the Center for International
Human Rights at Northwestern University School of Law.