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31Jul98

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We must slay this monster

Voting against the International Criminal Court is not enough.

The US should try to bring it down.

The decision by the US to walk away from the Rome treaty establishing a United Nations International Criminal Court was clearly the right thing to do. Since the signing ceremony in Rome, however, several governments have made clear their belief that the US will eventually succumb to international pressure and join the court, while others are hopeful that we will simply look the other way and not interfere with the efforts to establish and legitimise the court. The US can afford to do neither.

Rejecting the Rome treaty is not enough. The US must fight the treaty. Lloyd Axworthy, Canadian foreign minister, asked a good question in Rome: "The question is whether [the US] treats [the court] with benign neglect, or whether they are aggressively opposed." We must be aggressively opposed, because, even if the US never joins the court, the Rome treaty will have serious implications for US foreign policy.

The Rome treaty is an irreparably flawed and dangerous document. It includes, as one of its "core crimes", something called "aggression" - a crime that was included even though the countries negotiating the treaty were unable to reach agreement on just what it is.

It should be quite clear what will constitute "aggression" in the eyes of this court: it will be a crime of aggression whenever the US takes any military action to defend its national interests, unless the US first seeks and receives the permission of the UN.

This court proposes to sit in judgement on US national security policy.

Imagine what would have happened if this court had been in place during the US invasion of Panama? Or the US invasion of Grenada? Or the US bombing of Tripoli? In none of those cases did the US seek permission from the UN to defend our interests. And so long as there is breath in me, the US will never - I repeat, never - allow its national security decisions to be judged by an International Criminal Court.

Anyone who doubts the court will attempt to do so need only look to recent history. In the 1980s, the World Court attempted to declare that US support for the Nicaraguan contras was a violation of international law. The Reagan administration wisely ignored the World Court, because it lacked jurisdiction, and so had no authority in that matter.

Well, the International Criminal Court declares that the American people are under its jurisdiction - no matter what the US government says. The delegates in Rome included a form of "universal jurisdiction" in the court statute, which means that, even if the US never signs the treaty, or if the Senate refuses to ratify it, the countries participating in this court will still contend that American soldiers and citizens are within the jurisdiction of the court.

That is an outrage - and will have grave consequences for our relations with every country that signs and ratifies this treaty. Consider: Germany was the intellectual author of this universal jurisdiction provision. The US has thousands of soldiers stationed in Germany. Will the German government now consider those forces under the jurisdiction of the International Criminal Court? I support keeping our forces in Germany - but not if Germany insists on exposing them to the jurisdiction of the ICC.

Indeed, the Clinton administration will now have to renegotiate the status of our forces agreements not only with Germany, but with every other signatory state where American soldiers are stationed. And we must make clear to these governments that their refusal to do so will force us to reconsider our ability to station forces on their territory, participate in peacekeeping operations and meet our Article Five commitments under the Nato charter.

This treaty also represents a massive dilution of the authority of the UN Security Council - and the US veto within the council. In the words of the Indian representative, the delegates in Rome decided that "any pre-eminent role of the Security Council [would] constitute a violation of sovereign equality . . . [because] the composition of the Security Council and the veto vested in five permanent members is an anomaly which cannot be reproduced and recognised by the International Criminal Court".

Incredibly, during the negotiations, the US went along with this back- door effort to dilute the Security Council's powers, agreeing to a proposal by Singapore that turns the Security Council on its head. Under the treaty adopted in Rome, the US cannot veto a case going before the court. Rather, blocking a case will require the support of a majority of the council, as well as consensus among all the permanent members. Such a dilution of veto power in the Security Council is unacceptable, and must be fought by the US.

Because this court has such wide-ranging implications for the US, even if we are never a party to the treaty, I intend to seek assurances from the Clinton administration that:

  • The US will never vote in the Security Council to refer a case to the court.
  • The US will provide no assistance whatsoever to the court, either in funding, in-kind contributions, or other legal assistance.
  • The US will not extradite any individual to the court or, directly or indirectly, refer a case to the court.
  • The US will include in all of its bilateral extradition treaties a provision prohibiting a treaty partner from extraditing US citizens to this court.
  • The US will renegotiate every one of its status-of-forces agreements to include a provision that prohibits a treaty partner from extraditing US soldiers to this court, and not station forces in any country that refuses to accept such a prohibition.
  • The US will not permit a US soldier to participate in any Nato, UN or other international peacekeeping mission, until it has reached agreement with all Nato allies and the UN that no US soldier will be subject to the jurisdiction of this court.

The International Criminal Court is a threat to US national interests. We cannot treat it with the "benign neglect" Mr Axworthy is hoping for.

As a Dutch delegate put it at the conclusion: "I won't say we gave birth to a monster, but the baby has some defects."

He is wrong. The ICC is indeed a monster - and it is our responsibility to slay it before it grows to devour us.

[Source: By Jesse Helms, Financial Times, London, 31Jul98]
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