Global Policy Forum

When the United States initially opposed the establishment of a permanent International Criminal Court (ICC) in The Hague - a court meant to try war criminals from nations where the legal order and recourse to a court system had collapsed, while averting the politicized nature of ad hoc tribunals like the ICTY or the ICTR - it seemed a bit odd. It seemed to go against a long history of US support for and championing of international legal institutions - something the US always found to work in its favor. After all, the charter of the ICC (the Rome Statute) contains a subsidiarity clause (see Article 17), which states that a case is only admissible to the ICC when the home country of the accused, or the country where the crime was perpetrated, as applicable, is unable or unwilling to prosecute the accused. In other words, the ICC does not inherently have jurisdiction over individuals who could easily be prosecuted in their home countries where a functioning legal system exists (even if such a legal system were to decide to dismiss the charges in accordance with its own laws and procedures). The ICC will not get involved if another, more suitable forum exists to prosecute any given defendant. Furthermore, a nationally diverse prosecutorial staff and various approval steps (see Article 15) would ensure that politics would not be a determining factor in deciding which persons to prosecute and which not. Thus, the oft-cited fear that US soldiers or members of government would be dragged before the ICC in political show trials instigated by America's enemies is rather unrealistic and far fetched. US opposition seemed unnecessary and its vehemence startling.

When the United States Congress in 2002 then went as far as passing the American Servicemembers' Protection Act (derisively called the "Hague Invasion Act") and bullying third world countries into not ratifying the Rome Statute by threatening to withhold previously promised aid, US opposition to the ICC took on a distinctly grotesque flavor. The Hague Invasion Act not only prohibits US courts and authorities from providing any assistance to the ICC or any parties to any trial at the ICC and prohibits US courts from extraditing any persons to the ICC. More egregiously, it authorizes the President to extract by military force, if necessary, any "covered United States persons" in the custody of the ICC. In other words, the Act authorizes the US to militarily invade the sovereign country of The Netherlands, heretofore also known as a US ally and member of NATO. One might ask why anyone would need such gross overkill? Many intervening events would have to go grossly wrong for a US servicemember or politician to end up before the ICC in the Hague: he would have to be caught by a country ill-disposed towards the US and finally The Netherlands (and all countries represented in the pre-trial chamber and the prosecutor's office of the ICC) would have to be willing to destroy their good political relationship with the US by accepting custody over such an individual and turning him over to the ICC. Note, however, that the protection afforded by this act does not extend merely to members of government and the military. The president is allowed to invade in order to extract all "covered United States persons". The definitions section (2013) tells us that "covered United States persons" includes "other persons employed by or working on behalf of the United States Government". Similar protections are extended to "covered allied persons".

Now fast-forward to 2007 and the various scandals surrounding Blackwater USA and other private mercenary companies providing "security" in Iraq under no-bid US government contracts. Two days before leaving Iraq, American proconsul L. Paul Bremer executed the infamous Order 17 which placed all US personnel and foreign contractors beyond the reach of Iraqi law. Persons like the Bulgarian gunner and the Fijian pilot, employees of Blackwater shot in the most recent incident, would be prototypical examples of persons who could be hauled before the ICC fairly easily. Rule of law in Iraq is non-existent and these individuals do not operate under military rules of engagement and are not accountable to military command structures or military discipline. The US government would certainly not bat an eyelash over a Bulgarian gunner in Dutch custody per se. But putting him to trial would, during the discovery and testimony part of the trial, expose the sordid depth of US involvement in atrocities against the civilian population and/or collaboration with unsavory characters from various local militias. Could it be that US opposition to the ICC was to a great part driven by a long-standing desire to privatize war?