Has the US turned its back on international law? Nyier Abdou looks at the Bush administration's aggressive stance on the International Criminal Court The United States has never been known for being a team player when it comes to international treaties. Though host to the United Nations headquarters in New York, even conventions drawn with the loftiest of intentions have not escaped the painstaking legal scrutiny and ultimate rejection of the world's most powerful nation -- among them the UN Convention on the Rights of the Child and the Comprehensive Nuclear-Test-Ban Treaty, neither of which have been ratified by the US. The Kyoto Protocol and the 1972 Anti-Ballistic Missile (ABM) treaty with Russia have both withered under the administration of President George W Bush. Last week, the US tried to block a draft Optional Protocol to the Convention Against Torture that would allow inspection of detention sites in all countries party to the protocol. In May, it was the Rome Charter, the 1998 UN treaty that laid down the foundations of the International Criminal Court (ICC) that was cut loose from less than two years of unenthusiastic US patronage. Voting against the Rome Charter in 1998 made strange bedfellows of countries like China, Iraq, Israel, Libya and the US. But other countries moved swiftly. On 11 April, the treaty came into force when the number of state ratifications reached 66 -- six more than required. Of the 139 states that have signed the treaty, 76 have ratified it. Egypt has signed the treaty, but has yet to ratify it. Though former US President Bill Clinton signed onto the ICC Charter in the eleventh hour on 31 December 2000 -- a move that kept the US in the process of the court's creation -- an overwhelming fear on Capitol Hill of any foreign institution that would hold judicial authority over American citizens made it doubtful that the US would ratify the treaty anytime soon. But on 6 May, President Bush made this unlikelihood all the more palpable. In a letter to UN Secretary-General Kofi Annan, the US made clear that it did not intend to ratify the treaty. This act, often referred to as "unsigning" the treaty, frees the US from the limitations placed on its actions by Clinton's signing, namely, the obligation not to act against the treaty's purposes or undermine its cause. Though possibly unprecedented, and certainly antagonistic, the move is provided for in the Vienna Convention on the Law of Treaties. As John Washburn, convener of the American Non-Governmental Organisations Coalition for the International Criminal Court, explains, the term "unsigning", can conjure up the image "of someone going into the treaty records room of the United Nations with a big eraser or bottle of Witeout". Alas, the more legally accurate "signature nullification" is not so catchy. On 30 June, the US's adamant opposition to the ICC reached a crisis of international import when a routine six-month renewal of the UN peace-keeping mission in Bosnia came before the UN Security Council. The US used its veto to block the renewal, and threatened to withdraw from all UN peace- keeping missions unless it was assured permanent immunity from the ICC for all American staff in peace-keeping missions. Held hostage to the US's demands, the Bosnia mission was temporarily extended while a deal was hashed out. The final compromise, which was voted unanimously by the Security Council on 12 July, has sparked furious debate on perceived US hegemony and isolationism and the authority of the Security Council to interpret a multilateral treaty. Drawing on Article 16 of the Rome treaty, the Security Council resolution offers a 12-month reprieve from prosecution by the ICC for peace- keepers from all countries who are not party to the Rome treaty. But numerous human rights and pro- ICC organisations have questioned this move, most notably because Article 16 was clearly not intended for this purpose. In an interview with Al-Ahram Weekly, Brigitte Suhr and Andrew Egan, both counsel with the International Justice Programme at the New York-based Human Rights Watch, explained that though the Security Council resolution purports to rely on Article 16 to confer immunity on all UN peace-keepers and personnel, the article only allows the Security Council to defer an investigation on a "case-by-case basis". This would presumably be a situation in which an ICC investigation or trial could constitute a "threat or breach of international peace and security or an act of aggression". In such a case the Security Council can invoke Chapter VII of the UN Charter and act to thwart the threat. Three questions become salient in light of the US- sponsored resolution. First, what was the "threat" that made invoking Chapter VII possible? Second, did the Security Council overstep its bounds by issuing a resolution that can be construed as amending a treaty negotiated and ratified in an entirely different context? And finally, who is the final arbiter in this debate? Since the US called on Chapter VII of the UN Charter to issue its resolution, it seems that the only immediate threat facing the Security Council was in fact the US veto of the Bosnia peace-keeping mission. "Yes, it seems it was the US's own moves to block the Bosnia peace-keeping mandate that constituted the 'threat to international peace and security'," Fiona McKay, director of the International Justice Programme at the US-based Lawyers Committee for Human Rights (LCHR), told the Weekly. "The irony of this situation has been pointed out by NGOs and also by a number of states." One of the main issues raised by the Security Council decision was whether the council had the right to "rewrite" or "amend" an international treaty that has already been ratified by some 76 countries. To be sure, the Security Council does not see its decision as being an amendment to the treaty, or it would be crushed under the weight of its questionable action. But because Article 16 only provides for a case-by-case basis, and the Security Council resolution automatically defers any case arising in the next year, McKay says that the resolution is "effectively an amendment to the statute". Over at the International Justice division of Human Rights Watch, a similar argument is put forward. Brigitte Suhr and Andrew Egan noted that the Security Council had assumed an "unprecedented role" with respect to a multilateral treaty. The legality of the resolution can be challenged by a state party to the Rome statue in the International Court of Justice (ICJ), in The Hague. But in such a case any advisory opinion issued on whether the Security Council action exceeded its mandate would be non-binding. Alternatively, detractors could wait and see if an actual case came up and refer the case to the ICJ. At this point, Egan and Suhr admit that it is uncertain what would happen next. The ICJ could issue a ruling on the legality of the Security Council resolution. Another mechanism of protest is to take the issue straight to the General Assembly of the United Nations. Caterina Bolognese, legal cooperation programme officer at the Department of Crime Problems at the Council of Europe in Strasbourg, agrees that the "ultimate adjudicator" in disputes over international law remains the ICJ. Any UN organ or agency can also ask the ICJ for an advisory opinion. Asked if she thought the Security Council had gone too far, Bolognese is cautious. "I do not believe that it is the intention of the majority of the Security Council members to undermine the integrity of the statute," she told the Weekly. "What needs to be emphasised here is the fact that Resolution 1422 is the result of a very difficult compromise -- and it is a temporary measure." The measure needs an additional vote from the council to be renewed after 12 months have passed. "But it is true that to provide immunity for a category of persons is to undermine the principle of equality before the law," Bolognese concedes. "And this, in turn, damages the quality of justice which the ICC is able to deliver." Those who oppose the ICC maintain that it is illegitimate under American law and poses a grave threat to American sovereignty. In a recent address to the House International Relations committee about the ad hoc UN tribunals for the former Yugoslavia and Rwanda, Congressman Ron Paul, of Texas, argued that the ICC is "every American's worst nightmare". Once fingered by the court, any citizen could be "kidnapped, dragged off a foreign land and be put on trial by foreign judges, without the benefit of the basic protections of the American legal system". In his address, Paul cites the use of anonymous witnesses and secret testimony in the ad hoc tribunals as proof that "any American who loves our constitution and our system of justice" should be terrified. He also points out that the ad hoc tribunals have no appeals procedure. I took these accusations to the team at Human Rights Watch, who noted that "Much of what Congressman Paul and other detractors have to say about the ICC is based on faulty information. Some of this misinformation has been repeated so many times that it appears to be true, even when a quick look at the statute would prove otherwise." HRW's Suhr and Egan note that there are in fact appeals procedures for the Rwanda and Yugoslavia tribunals and a similar procedure will exist for the ICC. Fiona McKay, of the LCHR, is quick to point out that the Rome statute, in conjunction with the ICC Rules of Procedure and Evidence, "contain extensive due process guarantees, which closely mirror US constitutional safeguards". Among these are the presumption of innocence, choice of counsel, the right to confront witnesses and the exclusion of illegally-obtained evidence. The only provision that differs from the American legal system is that the ICC is not a trial by jury. But "almost" is not all, maintains Kent Snyder, executive director of the Liberty Committee, a group dedicated to guarding the rights of US citizens based in Arlington, Virginia. "The supreme law of the United States is the constitution of the United States," Snyder told the Weekly. "Our supreme judicial body is the US Supreme Court -- not the ICC or any other so-called court." Legislation passed through Congress on 18 July in the form of the American Servicemembers' Protection Act (ASPA) and awaiting President Bush's signature has a clause referred to by Human Rights Watch as an "invasion of the Hague" provision. This would essentially authorise the US president to do whatever it takes to liberate US personnel and its allies detained by the ICC. This kind of authorisation seems extravagant, first because the US can always avoid a US citizen being detained by the ICC by investigating, and, if appropriate, prosecuting the case itself. Furthermore, the logic goes that because the US does not recognise the court, it is justified in attacking The Hague to liberate any detainee. By this logic, Serbia, where many people do not recognise the tribunal for the former Yugoslavia, would be justified in attacking The Hague to free former Yugoslav leader Slobodan Milosevic. The fact that the current Serbian leadership is beholden to US aid and does not have the military might to launch such an invasion are presumably the only reasons it would not do so. And yet it was the US who withheld writing a large aid check on the condition that Milosevic be extradited to The Hague. "We agree this provision is outlandish," says HRW's Egan. "Many European officials and members of Congress have expressed their disbelief and disdain for the provision." Although highly unlikely, Egan and Suhr noted that a US or Serbian invasion of The Netherlands to free one of its citizens would "almost certainly violate international law". But Kent Snyder, of the Liberty Committee, sees it differently. "I would consider the arrest of an American citizen by the ICC to be an act of aggression against the United States -- and the US Congress and president should act accordingly." Snyder also noted that the fact that the ICC is supposed to be a last resort given the preference for national prosecution does not change the fact that the UN is trying to impose a jurisdiction that his organisation does not recognise. "That sounds like blackmail to me," he said. "If you don't do what we want, we'll do it anyway." The US's aggressive anti-ICC measures are powerfully unpopular in the court of world opinion. "With great power comes great responsibility," says the Council of Europe's Bolognese. "Regular moviegoers will be familiar with these words of advice -- which also hold true for accountability of action on the world stage." Bolognese notes that it is unwise for the US to insist on doing it alone when our times call for global unity. "A powerful country like the US would only stand to gain image-wise by supporting the ICC," she told the Weekly. "To do so is to accept, alongside 76 other countries to date, that there are some crimes that are so serious that they deserve a mechanism such as that provided by the court, which will prosecute those crimes if, for whatever reason, national justice systems fail to do so."
