The International Criminal Court

Right to the brink
Jul 4th 2002
From The Economist print edition


A last-minute reprieve at the UN, but no end to
hostilities

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HARD cases provoke
hard words. The
United States rejects
the jurisdiction of the
International
Criminal Court (ICC),
and wants its
European allies to
know it. By vetoing
the extension of the
United Nations
mission in Bosnia,
said America's UN
ambassador, John
Negroponte, America was demonstrating “just how
serious our concerns remain” about the “more than
perplexing” refusal of other countries to grant
American and other peacekeepers on UN operations
immunity from prosecution by the court. That was
tantamount to “taking hostage the operation in
Bosnia”, retorted Javier Solana, the European Union's
foreign-policy chief.

Just as a temporary extension to the UN mandate
was due to run out on July 3rd, efforts to reach a
compromise foundered and both sides agreed to
another 12-day breather. Even if an agreement is
eventually reached, the episode has shaken America's
European allies. How far is the Bush administration
willing to go to try to kill the court? And how
committed is it, really, to international
peacekeeping?

After the brinkmanship at the UN this week, the
answer to the first question, at least, seems pretty
clear: the American government is willing to go much
further than its allies had expected. The immediate
effect of a failure to renew the UN mandate in Bosnia
would have been awkward, but not a catastrophe.
The European Union would have had to scramble to
take over a 1,500-strong UN force that is training
local police, a handover which is planned for January
anyway. Even an American withdrawal from all UN
peacekeeping operations would not have been an
operational disaster. Just 46 American police are
working under a direct UN mandate in Bosnia, and
the United States has only 700 or so people serving
in UN peacekeeping missions worldwide.

However, America has not threatened to withdraw its
personnel from UN missions. It has threatened to
veto, one by one, the missions themselves. In fact,
most American troops abroad, including those in the
Balkans, do not operate under UN mandates.
Nevertheless, an American veto of UN peacekeeping
would create huge headaches for its allies, and
undermine the whole concept of international
peacekeeping generally.

In a letter this week to Colin Powell, America's
secretary of state, Kofi Annan, the UN general
secretary, complained that America's demand “flies in
the face of treaty law” and risks bringing discredit to
the Security Council itself. Even if this particular
quarrel can be patched up, America's allies must now
know it is not the end of the story. Some Bush
officials not only think the creation of the court was
misguided, they loathe it as a prime example of
international agreements which could, some day and
in some context, constrain America's freedom of
action.

One irony is that most of America's detailed
objections to the court have been accepted. Many of
America's allies, including Britain and France, fellow
permanent members of the Security Council and also
involved in peacekeeping, shared America's fears of a
rogue court. They also wished to avoid precisely what
they now face—unrelenting American hostility to the
ICC. When Bill Clinton was in the White House,
accommodation seemed a reasonable hope. The
Clinton administration opposed the ICC treaty, but its
negotiators played a key role in its drafting and, just
as important, the formulation of the detailed rules for
the court's operation. George Bush put a stop to that
in May.


It can already escape

The truth of the matter, an awkward fact for both the
Europeans and the United States, is that Mr Clinton's
negotiators succeeded in inserting so many loopholes
into the ICC treaty and the court's rules that
American personnel now have de facto immunity. One
loophole, which the Bush administration will exploit
to the full, leaves intact the bilateral military
agreements America has with more than 100
countries, which give America exclusive legal
jurisdiction over its soldiers and officials. These
cannot be breached by the ICC. On top of that, they
can probably be amended explicitly to exclude ICC
jurisdiction (lawyers argue about this, but America is
likely to win).

Moreover, American negotiators played a key role in
writing the “elements of crimes” that fall within the
remit of the ICC. These cover only “widespread and
systematic” atrocities—bombing Afghan weddings by
mistake does not qualify. In any case, an atrocity
must first be investigated by national authorities.
Only if a national government refuses to investigate
or prosecute, or mounts a sham trial as a whitewash
(Saddam Hussein can't simply acquit himself), would
the ICC be able to act. American accusations that the
ICC's prosecutor will pursue Americans despite all
these obstacles seem wildly exaggerated. The
prosecutor cannot open an investigation without the
approval of a three-judge panel. If the prosecutor and
the judges all go berserk, the countries that have
joined the court (most of them America's allies) can
remove them.

The purpose of the ICC is to provide a permanent
forum to put on trial the likes of Pol Pot and Mr
Hussein, not Americans or, for that matter,
Europeans. In fact, many developing countries have
signed up to the court precisely to gain some legal
protection against such monsters. But the Europeans
argue that, for the court to make a credible claim to
even-handedness, no one can be guaranteed a
permanent blanket immunity from its reach. Nearly all
America's NATO allies are willing to take the
infinitesimal risk that this entails. So far, the Bush
administration is not.
Quelle: Economist (nur Abo)

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