The United States versus the International Criminal Court
by Michael Montgomery

The sudden announcement of the world's first permanent war crimes court—the International Criminal Court (ICC)—caught many countries by surprise. Though the emergence of the court was probably inevitable, many people expected the ratification process would take years to surpass the required number of 60 countries. As it happened, some 66 nations ratified the treaty last February and the ICC formally came into existence on July 1. But the new court will not have prosecutors or judges until next year. Because the ICC has no retroactive powers, the court can investigate only violations that occurred on or after July 1.

The court will sit in The Hague and is authorized to prosecute individuals-from presidents to foot soldiers-- for crimes ranging from genocide to mass rape. The court also has jurisdiction over the crime of aggression, a controversial legal concept that was introduced by American prosecutors at the Nuremberg trials of Nazi leaders.

Well before the ICC was established, America's hostility to the new court was clear. Indeed, even the Clinton administration had a lukewarm, and often contradictory, position toward the court. American officials and military lawyers were active in fleshing out the crimes that will be handled by the ICC. At the same time, the Clinton administration never pressed for Senate ratification of the ICC treaty.

The Bush administration's campaign against the ICC has put the U.S. at odds with close allies in Europe, including Great Britain. However, on the global stage the United States is not alone: China, India, Russia and Israel also have not ratified the ICC treaty.

Much of the Bush administration's current rhetoric against the court focuses on the possible threat to U.S. officials and military personnel. As the world's only superpower—with troops deployed in dozens of countries—administration officials say the United States plays a unique role in global security, and should be exempt from the scrutiny of the ICC. Accepting the jurisdiction of a criminal court that is not accountable to any nation, the Bush administration contends, could leave America vulnerable to "political attacks" masquerading as ICC investigations.

"That court is unusual in a variety of ways," Secretary of Defense Donald Rumsfeld told reporters in June. "A loose cannon prosecutor in a court like that can impose enormous difficulties on individuals and governments."

The Bush administration threatened to withdraw U.S. personnel from peacekeeping missions unless the United Nations granted them immunity from prosecution by the ICC. In the face of opposition from European countries, the U.S. agreed to a compromise that calls for the court not to investigate or charge peacekeepers whose nations have not joined the ICC. The exemption lasts one year but could be extended.

U.S. concerns about the ICC go far beyond the security of individual personnel. In addition to seeing the ICC as an intrusion on American sovereignty and its citizens' constitutional rights, opponents say the court could threaten the Bush administration's effort to fight global terror. Just as some prominent Americans claimed the Nuremberg trials undermined the United States' readiness to counter the Soviet threat in Europe, opponents of the ICC say the new court weakens America's ability to use force against "unconventional" enemies like Osama bin Laden's al Qaeda network. As part of a major strategic shift, it is widely believed that the Bush administration is prepared to use "pre-emptive strikes" against groups or nations allegedly planning or supporting terrorist attacks against the United States.

But without explicit United Nations authority, those attacks could run into legal trouble with the new ICC. The court is working to codify the "crime of aggression," something that could criminalize the kinds of actions anticipated by the Bush administration in the war on terror.

Supporters of the ICC concede there are uncertainties over how the court might distinguish between the crime of aggression and the legitimate use of force. But they contend that the ICC statutes contain numerous safeguards to protect countries like the United States from "politicized" prosecutions. At the most basic level, supporters say, national courts retain primacy over the ICC unless it can be proved that an individual country is incapable or unwilling to investigate an alleged abuse.

Nuremberg prosecutor Benjamin Ferencz, an active campaigner for the ICC, sees the current U.S. policy as a repudiation of the kind of international legal framework America helped to construct after the Second World War.

"What the Bush administration is saying in affect is, 'We don't want the rule of law.' I think that's dangerous because we cannot lay down a law for the United States and not for the rest of the world. The law must apply equally to everyone or it's not law at all."