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Why The Administration's Objections To Joining, And Its Moves To Protect U.S. Peacekeeping Troops, Are Entirely Justified


Friday, Jul. 05, 2002

On July 1, the International Criminal Court opened its doors for business in The Hague. President Bush has made clear that he wants no part of it.

Indeed, the Bush administration feels so strongly about this issue that the United States is insisting that before any American troops are assigned to peacekeeping missions, there must be immunity from World Court prosecution - not only for the soldiers but also for all the policymakers involved in committing the soldiers.

But members of the European Union recently turned down the United States' request to provide blanket immunity to American forces involved in peacekeeping missions. The Los Angeles Times reports that, when this occurred, the Bush administration "appeared ready to paralyze U.N. peacekeeping operations from the Middle East to Central Africa unless it secures a guarantee that American personnel will be protected from the new International Criminal Court."

In short, Bush's position has created an international dust-up among world leaders and diplomats. It has again raised the question of whether this is dubious American exceptionalism, employed through a unilateral go-it-alone foreign policy, or appropriate American self-interest being forcefully protected.

But there is a clear right side in the controversy, and it is this: The Administration is correct about the World Court - and has good reason to oppose American participation, at least in the form such participation currently would take, and to protect American troops against the Court's possible assertion of jurisdiction.

The Creation Of The World Court, and America's Unresolved Problems With It

In 1998, following a five week conference in Rome, 120 nations agreed to create the International Criminal Court (ICC) to prosecute those who engaged in loosely defined crimes: war crimes, genocide, and crimes against humanity. Our closest allies, such as Britain and Canada, were among those who signed the court agreement.

While in favor of the concept, the Clinton Administration could not agree with the final language of the Rome treaty. Thus, along with China, Iraq, Libya, Qatar, Yemen and Israel, we rejected the accord.

The ICC is certainly benevolent in purpose, providing a forum to prosecute notorious human rights criminals such as Idi Amin or Pol Pot. Yet its good intentions are fraught with potential problems for our system of government, because it effectively overrides our Constitution and Bill of Rights. In addition, the crimes for which it may prosecute treaty signatories are not well defined, and the potentials for misusing - and, especially, politicizing - the ICC are substantial.

But if that occurs, the Administration should not be faulted for it. The problems America has raised with the Rome treaty are anything but frivolous, as some have claimed.

The Objection to Vaguely Defined Crimes

The ICC deals with horrendous crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Each is defined and described in the treaty. But these definitions range widely in their degrees of specificity. They also range widely in their compatibility with the jurisprudence of all the nations involved. A few examples will highlight the problems for the United States.

Genocide is typically understood as "the deliberate and systematic extermination of a national, racial, political or cultural group." However, at the request of the United States, the Rome treaty did not include cultural genocide. But there is serious concern it might be added.

Some scholars believe the United States could be found guilty of cultural genocide given the loose terms used in the Rome treaty. The basis for the charge would be the U.S.'s historical treatment of Native Americans and African Americans. The U.S. government does not want to open either of these cans of worms - at least, not through the ICC.

In setting forth eleven crimes against humanity, the Rome treaty creates a host of interpretative problems. These crimes include (in summary form): murder, extermination, enslavement, deportation of a population, false imprisonment, torture, rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, any form of sexual violence, persecution of any identifiable group, kidnapping, apartheid, and other inhumane acts causing great suffering or serious mental or bodily injury.

These crimes, of course, are defined and punished differently from country to country - and the definitions provided do not always resolve all the interpretive problems in defining what each name crime means. Moreover, given the wording of the definitions, it is not even clear in some instances what conduct is and is not covered.

Among the vaguely defined crimes are "war crimes." War crimes are intended to be less than crimes against humanity or genocide. Indeed, it appears a war crime could be single murder or rape of a civilian by a soldier.

In the case of a rape, the U.S. would far prefer to try its own soldier before a military court. In the case of a murder, the U.S. has reason to fear very serious definitional problems - with a killing in war, perhaps even an inadvertent one, forming the basis for a murder charge.

The idea that a single crime by a soldier could be a "war crime" under the Rome treaty's definition could result in American soldiers stationed in over forty countries around the world being tried before the ICC, for crimes now handled by U.S. military or civilian courts. It is a potential nightmare for the Departments of Defense and State.

The Constitutional Objections To Jurisdiction Over Even U.S. Crimes

If the treaty were ratified by the United States, the ICC would become a super-court with judicial power over Americans who have committed any of the covered crimes within the ICC jurisdiction - even if those crimes have been committed within the United States. Moreover, the President of the United States, or his Secretary of Defense, as well as a soldier in boot camp, could be forced to stand trial before the ICC; there is no exemption in the treaty for high government officials.

Our Constitution, however, vests power to criminally prosecute Americans for crimes committed in the United States solely with the state and federal governments. Article III states: "The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." And Article X provides: "The powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." That means, of course, the American people.

In addition, the treaty creating the ICC does not afford Americans the protections of the Bill of Rights. It excludes rights such as the right to trial by jury, and the right not to be subject to unlawful searches and seizures. While the treaty seeks to provide appropriate protections to those accused, they are not as comprehensive as existing American law offers. No wonder the U.S. does not want to allow Americans to come before the World Court.

The Objection To Jurisdiction Over Non-Ratifying Countries' Citizens

No provision of the Rome treaty has caused more concern than its universal jurisdiction provision. The wording of the treaty permits the ICC to prosecute even nationals of countries that have not ratified the treaty. Therefore, American forces who are part of a peacekeeping mission in a foreign country that has signed the treaty can be called before the ICC for violations alleged by that country - unless the Bush Administration procures from the Court the immunity that it is seeking for soldiers within these forces.

Since the outset of this treaty, the United States has argued that universal jurisdiction is contrary to existing international law. Under the provisions of the Vienna Convention on Treaties, and the Restatement (Third) of Foreign Relations Law of the United States, it has long been understood that "an international agreement does not create either obligations or rights to a third state" - meaning a state that has not joined the agreement - "without its consent." The Rome treaty simply ignores this precedent.

But the precedent makes perfect sense. It is a basic contract principle: A contract binds the parties who sign it, not others. The same is true of treaties and other international agreements, and it is only fair. The signatories, after all, negotiated and agreed to the contract's terms.

Bush's Position And A Temporary Solution

Quite reasonably, the President does not want to relinquish American sovereignty to the ICC. Even more reasonably, he does not want America's armed forces subjected to potential political prosecutions for vaguely defined crimes, where they must give up the rights guaranteed them under the Constitution, under a treaty to which the United States is not a signatory yet which purports to bind it nonetheless.

These problems have been apparent since the Rome treaty was put on the table, in final form, in July 1998. Nothing has changed. The treaty, by its own terms, cannot be amended for seven years, even if any of the signatories wished to do so.

And in any case, a movement among signatories to amend the treaty to address the U.S.'s objections is not likely. According to news reports, the ICC is popular in Europe by reason of the fact that it is not controlled by the United States.

Thus, the standoff has developed. There may be a temporary resolution in using bilateral immunity agreements with countries to provide American forces with protection. Limiting the use of American forces in peacekeeping operations to countries willing to sign such agreements may work for a while.

The bilateral agreements, though, are worrisome. If the World Court asserts the broad power to bind nonsignatories, will it necessary honor specific bilateral agreements with nonsignatories that contravene its broader power?

And the bilateral agreement fix, even if it works, is only temporary. It also less than satisfactory for the United States, even temporarily, to fail to meet its obligations throughout the world. We need to follow through in Afghanistan, for example, and not abandon our responsibilities there. Isolationism is no longer a viable foreign policy, as the global character of the war on terrorism has made all too clear.

No Choice But To Go It Alone

Still, the Rome treaty is not in the best interest of the United States - and thus the U.S. is between a rock and a hard place, between isolationism and giving up the basic Constitutional rights we cherish for our citizens.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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