Global Policy Forum

By Carol Giacomo

The Bush administration is pursuing its campaign to protect Americans from International Criminal Court jurisdiction even as it deals with the Iraqi prisoner abuse scandal that may involve some of the very war crimes the court was created to handle.

So far 89 countries have signed agreements with Washington promising that Americans accused of grave international offenses, including soldiers charged with war crimes, will be returned to U.S. jurisdiction so their cases can be decided by fellow Americans rather than international jurists. Other states may soon be added, officials said this week.

"It's never been our argument that Americans are angels," one senior U.S. official told Reuters. "Our argument has been if Americans commit war crimes or human rights violations, we will handle them. And we will," he added.

The permanent court was established in 2002 after ad hoc institutions dealt with war crimes in Yugoslavia and Rwanda. But President Bush opposed it and insisted on so-called Article 98 agreements under which countries guaranteed not to surrender Americans to ICC prosecution. With military and civilians on peacekeeping and humanitarian missions in 100 countries, Washington must preserve its independence to defend its national interests worldwide, U.S. officials said.

This position is coming under new scrutiny following publication of photographs showing U.S. army soldiers abusing and humiliating Iraqis at Abu Ghraib prison in Baghdad. The photos have fueled international outrage and severely damaged U.S. credibility. U.S. officials promise the guilty will be punished but rights experts worry prosecutions will focus on lower-ranking soldiers, not their superiors.

WAR CRIMES PROSECUTION

"The political reality is that its going to be harder now to persuade democratically elected leaders to immunize the U.S. military from war crimes prosecution," said Tom Malinowski, Washington advocacy director for Human Rights Watch.

While some states may be more reluctant to sign the bilateral immunity agreements, it is unclear they can avoid it, said Anthony Dworkin, London-based editor of the Crimes of War Project Web site. . U.S. law prohibits military aid to countries that do not sign immunity accords and Washington has used this lever to exert "enormous pressure" on countries to sign, he said.

Some legal experts disagree with the use of Article 98 agreements and question government insistence that U.S. military interrogation rules in Iraq and elsewhere comply with the Geneva Convention.

Washington "is reluctant to test its interpretation" before international jurists, Dworkin said. "All of us are appalled by those prisoner abuse photos and we need to address them," a U.S. official said.