By BRIAN COONEY
Contributing Writer
The Bush administration's open hostility toward the International Crimin= al Court is one of many examples of its disrespect for international law. As Howard Zinn put it, "The U.S. government considers itself exempt from legal and moral standards accepted by other na= tions in the world." Other instances of this exceptiona= lism include its use of capital punishment, its rejection of the Kyoto Treaty an= d of the international bans on land mines, napalm and cluster bombs.
On July 17, 1998, 120 nations signed the Treaty of Rome, establishing the International Criminal Court - a permanent tribunal for investigating and trying individuals charged with war crimes, crimes against humanity, or genocide. The treaty was implemented July 1, 2002. As of July 17, 2007, 105 countries have ratified the treaty. These include Canada, Mexico, Australia, New Zealand, Japan, the UK, France, Germany and nearly all other European nations except Russia.
The U.S. signed the treaty in 2000 under President Clinton. However, the Bush administration repudiated the treaty in 2002, and embraced a law passe= d by Congress titled the American Servicemembers Protection Act. This law authorizes the U.S. to use military force, if necessary, to free any citizen of the U.S. or its allies held by the ICC. S= ince the court is housed in The Hague (capital of the Netherlands), the ASPA is = also known as the "Hague Invasion Act."
Bilateral Immunity Agreement
The ASPA, especially as amended in 2005, authorizes the president to cut= off military and economic assistance to a country unless it signs a "Bilat= eral Immunity Agreement" with the U.S. A BIA obligates a country NOT to hand over American nationals to the ICC even if that country has signed and rati= fied the Treaty of Rome.
In the eyes of most ICC countries, BIAs are violations of the Treaty of Rome. Despite American bullying, 54 countries have refused to sign BIAs, judging that violating their treaty obligations is worse than losing Americ= an assistance.
Why is the Bush administration trying to undermine the ICC? It claims th= at the ICC puts Americans serving abroad at risk from politically motivated charges brought by governments hostile to the U.S.
This claim is groundless. First of all, the ICC claims jurisdiction only= in those cases where a government is unable or unwilling to investigate the charges brought against one of its citizens. A principal function of the IC= C is to serve as a court of last resort when war crimes are committed by nationa= ls of a country with a broken or inadequate legal system.
Moreover, if a charge is brought against an American soldier, for instan= ce, and the Army's preliminary investigation concludes that there is insufficie= nt evidence for the charge, this conclusion would be accepted by the ICC. If t= he U.S. were to participate in the ICC, it (like any other subscribing country) would have the option to withdraw if the court were to engage in biased proceedings.
Darfur and the ICC
The U.S. has been vocal in its denunciations of the genocidal violence in the Darfur region of Sudan. Despite its hostili= ty to the ICC, the U.S. did not veto a recent U. N. Security Council resolution calling on the ICC to investigate the situation there. Darfur is a perfect example of ongoing crimes against humanity that only an international tribunal such as the ICC can properly address.
The complaints of the Bush administration against the ICC are not only baseless, but also inconsistent with past American foreign policy. Througho= ut the violence-ridden 20th century, the U.S. was a leading advocate for the i= dea of an international tribunal enforcing laws that rest on our common humanity and rationality rather than on the legal code of a particular nation. For example, the U.S. was a principal architect of the International Military Tribunal (Nuremberg, 1945-46), which convicted many Nazi leaders and senten= ced 12 of them to death.
One possible explanation for the Bush administration's hostility to the = ICC may be the fear that some of its prominent members, including Bush himself, could be the target of investigations by the court. Even though American judicial institutions could address such charges, thereby sparing prominent American officials from appearing in an international court, the airing of = such charges would be a national embarrassment.
What sorts of charges could be brought against Bush and company? We inva= ded Iraq neither in self-defense nor in the face of an immi= nent attack, and the invasion was not authorized by the U.N. Therefore, B= ush, Cheney and Rumsfeld could be accused of waging = a war of aggression against Iraq (and thereby causing the deaths of as many as 700,000 noncombatants).
The Nuremberg Tribunal called a war of aggression "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
Brian Cooney is the Stodghill Professor of Philosophy at Centre College.
CopyrightThe Advocate-Messenger 2007