Disorder in the Court

Oct. 1, 2002

Consider this scenario: The commander of a US Air Force squadron that has been hunting al Qaeda diehards in Afghanistan is returning home on regular rotation. But rather than travel with the bulk of his unit he decides to make a quick side stop in Belgium to visit a relative he hasn’t seen for years.

At the airport outside Brussels a passport control official studies the pilot’s documents with particular intensity. After a few minutes the guard escorts him to a holding room. Within an hour the American discovers–much to his surprise–that he is in custody, per a request from the new International Criminal Court in the Hague.

The charge? An Afghan warlord has complained that aircraft under the USAF lieutenant colonel’s command have systematically disregarded the safety of civilians on the ground as the aircraft pressed attacks on scattered terrorist camps. An ICC prosecutor opposed to the continued US bombing in the region has decided that the warlord’s assertion bears investigation, despite US insistence that it is frivolous.

Back in Washington, US officials react with fury. Belgium, Germany, and other allies remain adamant that the flier might be a war criminal. A crisis in the western alliance looms.

An exaggeration? Perhaps. Perhaps not. Technically speaking, such events are entirely in keeping with the charter of the International Criminal Court, which officially came into existence July 1.


Years in the making, the United Nations-affiliated ICC is billed as a sort of standing Nuremberg tribunal for the modern age. Its mission is to track down and try individuals, not states, charged with crimes against humanity, without regard to the limitations of national borders.

Defenders of the court say it is preposterous to think it might unfairly snag US service personnel. Its target, they say, is the Slobodan Milosevics of the world–not USAF lieutenant colonels.

Continuing Bush Administration efforts to exempt US personnel from ICC jurisdiction are nothing less than an attempt by America to hold itself above the law, critics say.

But in the Pentagon, officials see things differently. The United States’ high-profile role in peace enforcement around the world makes it especially vulnerable to politically motivated prosecutions, according to the Defense Department.

Nor is the US holding itself above some canonical world “law.” What it may really be doing is refusing to let assorted foreign jurists, some from countries where elections and due process are novelties, tell it what “law” is.

“Our principal objections to the ICC treaty are that it subjects US nationals–in particular, the risk is great for our armed forces–to prosecution by prosecutors … that are not accountable to any kind of authority that we could hold accountable as a country,” said a senior defense official in a briefing for reporters in July.

The international court “creates a situation where our people could be prosecuted for crimes that are defined by the parties to the treaty,” said the official. “And nobody in our Congress would have a voice in the definition of those crimes.”

On July 17, 1998, in Rome, 120 nations voted to adopt a treaty that outlined the establishment of an International Criminal Court. The United States was not among them.

No official record of the vote was made public at the time, but US officials had long expressed unease about the formation of a permanent body intended to adjudicate war crimes around the world. American representatives to the Rome conference made repeated–and ultimately unsuccessful–attempts to change some of the treaty’s core provisions during the weeks leading up to its adoption vote.

Virtually all of America’s allies, with the notable exception of Israel, voted in favor of the new body.

Eventually, as one of its last acts before leaving office, the Clinton Administration affixed a US signature to the treaty document. The point–as officials made clear at the time–was to continue to try and modify the court’s makeup from inside the system, rather than outside.

Defenders of the court say it is preposterous to think it might unfairly snag US service personnel.

The “Unsigning”

In May, the Bush Administration decided to try another approach. The White House took the unprecedented step of “unsigning” an international agreement, by sending UN Secretary-General Kofi Annan a letter stating that it considered the US acceptance of the International Criminal Court pact nonbinding.

US Ambassador at Large for War Crimes Pierre-Richard Prosper said then that the US will “not take aggressive action or wage war, if you will, against the ICC or the supporters of the ICC.” But he also made clear that the new tribunal should not expect any cooperation from the US and that the Administration considered US citizens exempt from the ICC’s reach.

Following ratification by the requisite 60 signees, the ICC was officially launched this summer. Its mandate: to try individuals and hold them accountable for war crimes, crimes against humanity, genocide, and eventually, crimes of aggression.

One might reasonably expect terrorism to be covered by at least one of these categories, but it isn’t. During the 1998 negotiations surrounding the ICC treaty “there was significant interest in including terrorism in the court’s mandate, but it was decided not to do so,” notes a UN fact sheet. It added that the UN is drafting a comprehensive convention against terrorism and member states may add it to the list of crimes at some future date.

The court will consist of a panel of 18 judges drawn from 18 different member countries, each appointed to a nine-year term. A prosecutor elected by member states will begin and try cases.

Any nation that signs the ICC pact can refer a situation for investigation. In addition, the UN Security Council may refer a situation or an ICC prosecutor can launch a probe on his or her own, based on information he or she receives from victims, nongovernmental organizations, or any other reliable source, according to the UN.

The court claims jurisdiction over crimes committed anywhere by nationals of ratifying states–and over crimes committed in the territories of ratifying states. As of August, 78 countries had ratified the ICC pact, including Belgium, Canada, France, Germany, Italy, Netherlands, and the United Kingdom.

Its backers have hailed the new court’s establishment as a historic event. They have emphasized that it is a truly international, permanent institution.

By “unsigning” the ICC treaty and declining to take a role in the court’s operations, the Bush Administration made a grave error, said Harold Hongju Koh, a former assistant secretary of state in the Clinton Administration.

“This is an international Marbury vs. Madison moment,” sniffed Koh earlier this year, referring to the seminal 1803 Supreme Court decision that gave the court jurisdiction over the other branches of government.

In other words, the US is missing an opportunity to cede sovereignty to an international body. The response to this, from both the Bush Administration and overwhelming majorities in Congress, has been along the lines of this: “Gee, what a shame! Guess we’ll just bumble along with the legal system we’ve got.”

The Challenge

Then, in July, US officials decided more drastic action was called for, now that the court was open for business. Shocking friends and foes alike, the Bush Administration threatened to use its UN Security Council veto to block the renewal of all UN peacekeeping missions, beginning with the mission in Bosnia, if the UN did not exempt all peacekeepers from the ICC jurisdiction–permanently.

The ICC’s European friends went into an uproar. In the end, Britain brokered a compromise. All citizens, be they military or civilian, from nations that have not ratified the ICC treaty and who are involved in UN-authorized operations, will be immune from court prosecution for one year.

The issue will be no less contentious next year when the Security Council resolution that established it comes up for renewal. Court supporters feel the exemption establishes a dangerous precedent.

“Special rules for strong countries–particularly when the issue at stake is the global pursuit of the worst human rights violations–are inappropriate and not compatible with the principle of the rule of law,” said German Justice Minister Herta Daeubler-Gmelin after the deal was struck.

Many European commentators attributed the US rejection of the ICC to what they perceive as the Bush Administration’s unilateralism. In doing so, they appear not to recognize that in the US, opposition to the ICC runs deep. Among lawmakers, it is not really a matter of debate, as is, say, the question of adherence to the Kyoto treaty on limiting greenhouse gases.

There was little debate in Congress this year, for instance, about the attachment of a provision called the American Servicemembers’ Protection Act to a supplemental spending bill, ensuring its easy passage.

“Hague Invasion Act”

This provision authorizes the use of force to free any American held by the ICC in the Hague.

It also provides for the withdrawal of US military assistance from countries that have ratified the ICC pact and restricts US participation in UN peacekeeping, absent ICC immunity guarantees.

The legislation was softened by inclusion of language allowing a presidential waiver on national security grounds. But the “Hague Invasion Act,” as some dubbed it, was a clear indication of American intent.

“Should the ICC eventually seek to detain any American, the United States would regard this as illegitimate–and it would have serious consequences. No nation should underestimate our commitment to protect our citizens,” said US ambassador to the UN John D. Negroponte earlier this year.

But seriously, would an international prosecutor really want to pursue a case against a United States citizen? The International Criminal Court’s main targets are supposed to be rogue statesmen with little regard for human life–the Milosevics and Idi Amins of the world.

The court’s charter charges it with investigating only patterns of abuse, not individual incidents. It is supposed to intervene only if the alleged perpetrator’s own nation does not pursue charges.

Such safeguards make the idea of Americans in ICC custody preposterous, according to the court’s defenders.

But “preposterous” is not the same as “impossible,” note Pentagon officials. Furthermore, there are a number of reasons to believe that US fears are not really preposterous at all.

The first is that there are a lot of Americans–peacekeepers, deployed troops, and diplomats–for the ICC to go after if it so chooses. America’s role in the world has long required that large contingents of its personnel be deployed in difficult situations in many countries.

“The United States is more exposed, as it were, to risk under the ICC than any other country in the world because we are more active all around the world in places where people want us to be,” said a senior defense official at the Pentagon’s July briefing.

Easy Political Targets

The second is that these Americans might present a unique political target for prosecutors opposed to US policies. They could decide that actions widely supported in America as acts of military necessity are in fact war crimes and prosecutable as such.

“We feel that we have an obligation to protect our service members from politically motived prosecution from a court that’s not accountable to the American people,” said the Pentagon official.

If that seems an overreaction to the circumstances, remember that the UN’s International Criminal Tribunal for the former Yugoslavia spent many months weighing whether to charge NATO leaders with some sort of crime for alliance bombing that occurred in the air war over Kosovo.

Just this summer a nationalist Croatian group asked the Hague-based Yugoslav tribunal to consider bringing former President Bill Clinton up on war crimes charges.

Many Croatians were upset by the Hague court’s indictment of a popular Croatian military leader, Gen. Ante Gotovina, for atrocities allegedly committed during a 1995 offensive against Serbs. The battle in question–Operation Storm–was vetted and approved by US leaders up to Clinton himself, according to a complaint submitted by the Croatian World Congress to Carla del Ponte, the tribunal’s chief prosecutor.

US forces even provided secret military aid, charged the CWC. Thus “evenhanded justice” requires that Clinton stand in the dock shoulder to shoulder with Gotovina, said the group’s complaint.

It’s unlikely that UN security troops will be marching a handcuffed ex-President out of his Harlem offices any time soon. The Hague prosecutor’s office simply filed the complaint without comment. In truth, not even the Croatians want to see Clinton on trial. They just want to get Gotovina off the hook.

But the Clinton example shows the dangers of the ICC, according to the Pentagon. The Croatians made their charge purely for political purposes. What if an ICC prosecutor had a similar political motive in taking it up? The US would surely never charge a former president on such grounds, and the ICC might then claim it had a right to investigate.

And there is always the chance that domestic groups might use the threat of the ICC as a sort of club to influence internal debate. That has already happened in Israel, where a small Israeli pacifist group sent letters to army officers, threatening to bring them up before the ICC for actions taken in the occupied territories.

Legal protections inherent in the American judicial system are not necessarily reflected in the ICC’s charter. It says nothing about a jury of peers, for instance. Rules of evidence will likely be different.

Finally, there is the fact that the treaty claims to apply to countries that are not parties to it.

“This is really a radical, I would say an astonishing, innovation in international law, … that a number of countries would arrogate to themselves the right to adopt a treaty and impose it on states that haven’t signed on,” said the senior Pentagon official.

One way the US has tried to lessen the danger of politically motived ICC prosecution is through bilateral treaties. By early August, both Romania and Israel had agreed with the US that neither party would extradite any of the other’s citizens to ICC custody without mutual consent.

US officials say they will continue to pursue such two-country agreements, while pressing the UN Security Council to make the one-year peacekeeper exemption permanent.

“All we’re doing is saying we would like to stand on the long and well-thought-through traditions of international law and have our sovereignty respected,” said the US official.

Peter Grier, a Washington, D.C., editor for the Christian Science Monitor, is a longtime defense correspondent and a contributing editor to Air Force Magazine. His most recent article, “The Short, Happy Life of the Glick-em,” appeared in the July 2002 issue.