Bad Neighbors

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 obligations.

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.

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