The United States and the ICC: Courting Disaster?

Does the United States fear a court sanctioned to sentence war criminals more than it fears terrorism?

August 19, 2002

Does the United States fear a court sanctioned to sentence war criminals more than it fears terrorism?

If there is any region in the world that has had recent experience with the highs and lows of international jurisprudence, it is the Balkans.

The acts of war that accompanied Yugoslavia's disintegration were so brutal that a special court in The Hague — the International Criminal Tribunal for the former Yugoslavia (ICTY) — was created by the United Nations in 1993 to address these crimes.

Cooperation with that court is one important yardstick by which the nations of the former Yugoslavia have been measured since 1993. In fact, foreign aid and membership in European and world organizations has been tied to their cooperation with that court.

In the case of present-day Yugoslavia itself (consisting of Serbia and Montenegro), the extradition of former President Slobodan Milosevic was a condition for the lifting of U.S. sanctions against that country.

In fact, one of the cornerstones of U.S. Balkan policy has been unrelenting pressure for the arrest and extradition of war criminals to The Hague to be tried by an international court.

When the Serbian authorities sent Mr. Milosevic to The Hague to stand trial for war crimes in June 2001, U.S. President George W. Bush said that this step heralded Yugoslavia's move "toward a brighter future as a full member of the community of European democracies."

However, Mr. Bush and U.S. policymakers feel much differently about another arm of international jurisprudence — the International Criminal Court (ICC) which opened its doors in July 2002.

Created in 1998 via a United Nations treaty signed by 139 countries in Rome, the ICC is a permanent court to try war crimes such as the ones that are now being heard by the ICTY — and a second special UN court for the atrocities committed in Rwanda.

At the time, the United States joined China, Iraq, Israel, Libya, Qatar and Yemen as the only countries in the United Nations (UN) to vote against the ICC.

But in December 2000, in one of the last executive acts of his presidency, U.S. President Clinton did sign the Rome treaty. Nonetheless, he recommended to his successor, George W. Bush, that the treaty should not be ratified.

And it has been the Bush White House that has most actively tried to smother the ICC in its crib — via a revocation of President Bill Clinton's signature — and a threat to abandon the vital UN peacekeeping mission in Bosnia-Herzegovina.

The temporary blockade of the Bosnia-Herzegovina mission won U.S. peacekeepers a one-year exemption from prosecution. Yet, the Bush Administration has not stopped there.

Its attack on the ICC continued when Mr. Bush signed a new law — the "American Servicemembers Protection Act of 2002″ — that commits the United States to open subversion of the new international court.

Some of the new law's provisions are patently absurd. One such clause gives U.S. armed forces the authority to "liberate" any U.S. citizen (or U.S. ally) held by the ICC. Put simply, the law provides a pretext for one NATO member (the United States) to invade another NATO member (the Netherlands) if a U.S. citizen ends up in the ICC dock in The Hague.

Absurd as that scenario appears, other U.S. actions required under the new anti-ICC law are more plausible and pernicious.

For instance, the law allows the United States to withhold military aid from nations that do not sign agreements exempting U.S. troops or civilians on their soil from the ICC's jurisdiction.

The U.S. State Department is attempting to secure such agreements already — and Israel and Romania have already signed on the dotted line.

The United States argues that it should not be subject to a court — such as the ICC — that it does not recognize. Which brings us straight back to the Balkans. According to Belgrade's B92 radio, Yugoslavia and Bosnia-Herzegovina are among the nations that the United States has approached to sign such exemptions from the ICC.

Politicians in Bosnia and Serbia, as well as in Croatia, are quite familiar with the U.S. argument on the ICC. It is, in fact, the same argument they have used to avoid extraditing those responsible for Balkan war crimes to the ICTY.

These leaders (including Yugoslav president Vojislav Kostunica) question the jurisdiction and the legitimacy of the ICTY — and then drag their feet in sending citizens indicted by the court to trial in The Hague.

Predictably, Yugoslav officials — who remain under immense pressure to continue extraditions to the ICTY to receive U.S. foreign aid — have pointed out the clear contradiction in the Bush Administration's efforts to remain immune to ICC prosecution.

For instance, Mr. Kostunica noted acidly to a Serbian news agency that "those who would enjoy immunity from prosecution would not only sleep soundly, but would also be encouraged to keep committing crimes.”

Worse yet, pro-Western reformers such as Serbian Prime Minister Zoran Djindjic — the prime mover behind Mr. Milosevic's arrival to stand trial in The Hague — have been placed on the defensive by the U.S. push for ICC immunity.

Mr. Djindjic told B92 that "The fact is that all European countries accepted this international court and the question is where we see our place — whether it is among the countries which believe that for certain criminal acts against humanity certain international courts should be in charge."

Demands by the United States for cooperation with international justice ring hollow against its push for countries to sign agreements that undermine the ICC.

In essence, the world's lone superpower will not walk it like it talks it. It is a contradiction that will deepen worldwide cynicism about the United States — both in Yugoslavia and elsewhere — at a time when the United States needs allies in a war to bring terrorists to justice.

Defenders of the Bush Administration's anti-ICC policy point out that the new law gives U.S. presidents the opportunity to "waive" such agreements on national security grounds.

But the badly conflicted U.S. policy on international justice appears to boil down to a simpler question: Does the United States fear a court sanctioned to bring war criminals to justice more than it fears terrorism?