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International Court Rejection Seen as Symbolic
7 May 2002
President George W. Bush's administration formally renounced Monday all U.S. obligations as a signatory to the 1998 treaty establishing the International Criminal Court (ICC). Although purely symbolic in legal terms, the move could haunt U.S. foreign policy and interests, analysts said.
U.S. officials denied reports the administration would launch a major campaign against the Court or the treaty, ratified by 66 countries, including Canada and all but one member of the European Union (EU) and due to take effect Jul. 1.
In a letter sent to United Nations Secretary-General Kofi Annan, the Under Secretary of State for Arms Control and International Security, John Bolton, said Washington does not intend to become a party to the Rome Statute of the ICC and that it "has no legal obligations arising from its signature on December 31, 2000."
Pierre-Richard Prosper, the U.S. ambassador-at-large for war crimes issues, said the administration would not "wage war against the ICC" but also emphasized that the Court should not expect Washington to support its work by providing witnesses, evidence, or any other type of cooperation.
He added that Washington will seek assurances from the 100-odd countries where U.S. soldiers are deployed that these forces will be protected from the Court's reach. It would seek similar assurances for U.S. deployments in peacekeeping missions authorized by the United Nations.
The administration's announcement drew strong criticism here and abroad. In Madrid, EU foreign policy chief Javier Solana told reporters: "The European Union is an organization that tends to respect multilateral agreements, and we would very much like to see the United States joining this effort."
The executive director of the U.S. section of Amnesty International (AIUSA), William Schulz, said of Bush's move: "Driven by unfounded fears of phantom prosecutions, the United States has hit a new nadir of isolationism and exceptionalism. Out of step with our allies and America's legacy, this is an historic low for the United States' role in protecting human rights."
Proposals for a permanent international criminal court that would try cases involving war crimes, crimes against humanity, genocide, and international terrorism have circulated in one form or another since the Nuremberg war crimes trials after World War II.
While ad hoc tribunals were established for the former Yugoslavia and Rwanda, a framework for the creation of a permanent ICC was agreed only after several years of negotiations that resulted in the 1998 Rome Statute.
Under strong pressure from rightwing Congressional forces and the Pentagon, which was concerned about possible politically motivated prosecutions of U.S. servicemen and women abroad, former President Bill Clinton initially opposed the Statute but then signed it on Dec 31, 2000, just before leaving office.
The incoming Bush administration targeted the Rome Statute virtually from the moment it took office. Officials said last week the administration had intended to withdraw from the treaty last year but was held up by the more urgent tasks following the Sep. 11 terrorist attacks.
When it became clear that 60 countries - the number required for the treaty to take effect -- would ratify it by mid-April, administration hawks pressed the issue again, and their efforts resulted in Monday's announcement.
Under Secretary of State for Political Affairs Marc Grossman said the decision was taken for several major reasons. Given the independence accorded ICC prosecutors and the Court itself by the Rome Statute, he said, "we believe the ICC undermines the role of the United Nations Security Council in maintaining peace and security." The United States has veto power on the Security Council.
Grossman added that the prosecutorial system created by the ICC failed to include checks to any arbitrary or political uses of its power, leaving it open "for exploitation and politically motivated prosecutions."
The fact that the ICC asserts jurisdiction over citizens of states that have not ratified the Statute, such as the United States, he said, "threatens U.S. sovereignty" and could "complicate U.S. military cooperation with many friends and allies who will now have a treaty obligation to hand over U.S. nationals to the Court - even over U.S. objections."
Finally, the existence of the ICC and its assertion of universal jurisdiction could have a "chilling effect on the willingness of States to project power in defense of their moral and security interests," said Grossman. He suggested that the United States and other powers might be less willing to stop genocide or oust regimes like Afghanistan's Taliban if they might then be prosecuted for aggression or war crimes.
EU countries including Britain, Washington's main ally in the war in Afghanistan, and rights groups have dismissed these fears as either groundless or exaggerated. Under the Statute, for example, the ICC can only take cases that national courts are clearly unable or unwilling to prosecute.
In any case, said experts, renouncing Clinton's signature has no actual legal effect, because the ICC retains universal jurisdiction.
"It doesn't mean anything legally," said Elisa Massimino, Washington director of the Lawyers Committee for Human Rights (LCHR). "I guess it makes them feel good but the administration has to ask itself what is the best way to protect its interests at the moment? The best way is to stay engaged in the process. This is like throwing away any influence that the U.S. has in the creation, and for what?"
David Scheffer, Prosper's predecessor under Clinton, has also pointed out numerous safeguards that have been included in the treaty. He characterized the administration's move as "extremely destructive of American interests."
"Other governments might take American nullification of its signature on this treaty as an opportunity to unsign other treaties - like the Chemical Weapons Convention - that are critical in our campaign against terrorism," he wrote recently in the New York Times.