Global Policy Forum

Could American forces invade the Hague to rescue an American pilot who was detained in an international court on a charge of war crimes?

The idea seems laughable, particularly at a time when the United States is trying to build a global alliance against terrorism based on the rule of law. Yet this appears to be one of the aims of a draft law that could soon be passed by the US Congress.

The law is known as the "American Servicemembers Protection Act," or ASPA. It is aimed at deterring other governments from joining the new international criminal court (ICC) which was established by an international conference in Rome in 1998. 43 governments have ratified the ICC treaty, out of the 60 ratifications needed for the court to come into existence. The Netherlands has offered to host the court, and some feel that its judges could be sitting in the Hague as early as next summer.

As the court attracts more international support, so it enrages American conservatives. The author of ASPA is Senator Jesse Helms, a one-man legislative wrecking crew who opposes any multilateral commitment that would diminish America's sovereignty.

ASPA would prohibit the US from cooperating with the ICC and from providing some forms of military assistance to governments that ratify. (An exception is made for NATO governments and US allies that include Japan, South Korea, Egypt and Israel). Most bizarre, ASPA would authorize the US to use "all means necessary and appropriate" to free any Americans who face prosecution at the new court. This is diplomatic code for the use of force. As a result, some have dubbed ASPA the "Hague Invasion Act."

A version of ASPA was accepted by the US House of Representatives on May 10. The Senate decided not to vote on it recently when Senator Helms attempted to attach it to a larger bill on defense spending. But many are now predicting that he will try and link it to an important new bill – the Foreign Operations Authorizations Act – which could be voted on as early as this week.

The betting is that this time Helms may succeed. One reason is that the Bush Administration has announced its support for ASPA in a September 25 letter to Senator Helms. Another is that American pilots are in action over Afghanistan. If civilians are deliberately bombed in Afghanistan it would constitute a war crime – and that may be what worries Senator Helms and other American opponents of the ICC. They feel that pilots in future missions could be demoralized, and deterred from doing their duty, if they knew they might face prosecution at an international tribunal.

Helms is also exploiting other American fears. Many Americans remain angered by the way that Kenneth Starr, the independent prosecutor, hounded President Clinton over his affair with Monica Lewinsky. They understand it when Helms warns that a "rogue prosecutor" at the ICC might try and arrest American pilots or even Americans serving in a UN peacekeeping mission. As a result, another provision in ASPA would prohibit the US from participating in a UN peacekeeping mission unless it is specifically assured that Americans will not face prosecution as a result of carrying out their UN duties.

UNJUSTIFIED FEARS

Are any of these fears justified? Absolutely not, say campaigners from the NGO Coalition for the International Criminal Court, a network of over 1,000 NGOs which pushed for the establishment of a court and is now campaigning hard for its ratification.

The campaigners point out that there are three ways to bring a case before the court, and that none would involve the prosecutor. The ICC prosecutor would certainly be expected to investigate complaints, but he or she would only be able to initiate a prosecution after getting approval from a pre-trial chamber of three judges.

The ICC will have automatic jurisdiction over the citizens of any state, which ratifies the treaty. It will exercise this jurisdiction when any one of three crimes – genocide, crimes against humanity or war crimes – are committed on the territory of the state or by one of the state's nationals. The UN Security Council will also be able to refer a case to the court if it might help to protect international peace and security.

At the insistence of governments, several major "safeguards" have been built into the court. First, the threshold for crimes has been set so high that individual war crimes will not qualify for prosecution unless they are part of a clear pattern. Crimes against humanity will only be taken up by the ICC if they result from a "policy."

Second, the ICC will be barred from acting on a complaint if the suspect's own government undertakes to make a "genuine" good faith effort to investigate. If the government decides that there is no case to answer, that will be the end of the matter. "The United States has long boasted that its system of military justice is the best in the world," says one campaigner. "If this is true, the US has nothing to fear from the ICC."

Another safeguard is more indirect. The judges and prosecutor will be chosen by the states parties. These governments are almost certain to be law-abiding and democratically-inclined, because there is very little chance that a violent and abusive government will ratify. (To do so could invite an indictment by the ICC.) The chances of democratic governments electing "rogue" prosecutors or judges are surely remote. Indeed, many Western diplomats bridle at the mere suggestion.

If there are any lingering doubts, says the NGO coalition, the US should be reassured by the record of the Hague tribunal on the former Yugoslavia.

Unlike the ICC, the tribunal was established by the Security Council and not by a treaty conference. This gives the tribunal prosecutor more independence than will be enjoyed by the ICC prosecutor, but this independence has been used with great caution. Human rights groups complained angrily after NATO bombing killed scores of civilians in Serbia and Kosovo in 1999. But Louise Arbour, the then-prosecutor, concluded that civilians were not being deliberately targeted. In other words, no war crime had been committed.

Arbour's office also reviewed the use of uranium-depleted bombs and bullets by NATO in the Kosovo war. Much of this ordnance failed to explode, resulting in contamination. But once again, it was not deemed to constitute a war crime.

These decisions may have reassured NATO generals, but they alarm many human rights groups who fear that the balance has now tipped too far in favor of governments and against the victims of war.

The main drive for an independent court came from the whole-scale butchery of civilians that occurred in the wars of the early 1990s, particularly in Rwanda and Bosnia. It was the failure of governments, and the Security Council, to prevent these horrors that led the NGO Coalition to call for a strong, independent court. Many NGO campaigners now fear that so many checks and balances have been built into the ICC statute, at the insistence of governments, that the court could find it hard to do what it was set up to do – namely punish criminals and save lives.

The campaigners note, for example, that the ICC will not be able to prosecute one-off massacres or a sudden spate of disappearances. The court might not even be able to go after a mass murderer who flees to a third country and is then arrested, if neither the state of his nationality nor the state where the crime was committed have ratified the ICC treaty. That could be a crippling loophole.

PREVENTING KANGAROO COURTS

What can explain the vehemence of the American assault on the ICC, if the US has so little to fear?

One explanation is that the ICC has uncovered the deep strain of isolationism that seems to surface during a Republican administration. So far this year the Bush Administration has rejected treaties (or proposed treaties) that curb global warming, the spread of small arms, and nuclear proliferation. The US has even fought efforts to strengthen the Convention on the Rights of the Child. (See coverage in On the Record). Whatever the benefits of these agreements, the US has decided that they are outweighed by the loss of US sovereignty.

At first sight, this risk appears greater in the case of the ICC because the court will have jurisdiction over the citizens of states that do not ratify the treaty (if they commit crimes on the territory of states which have ratified). American diplomats argue that this would violate a fundamental principle governing international relations.

But it is also easy to see how the ICC formula could also benefit the United States. Suppose an American pilot were shot down in Afghanistan. One assumes that he would be hauled before a kangaroo court and accused of war crimes.

The ICC does not have retroactive jurisdiction, but were it to exist today there is no doubt that the unfortunate American pilot would stand a much better chance of a fair trial as a result of the ICC's system of complementarity.

Under this system, the US could demand the first right to investigate the charge against its pilot – if the US had ratified the ICC treaty. If Afghanistan had ratified and still went ahead with a show trial that denied the defendant the right of due legal process, the court could demand that the pilot be handed over to the ICC – or back to the US. If neither the US nor Afghanistan ratify, which seems likely, the Security Council could still intervene and refer the case to the ICC.

Quite simply, the court would provide a greater chance of due process for foreign soldiers who are sucked into far-off wars in countries like Afghanistan or Iraq, than the current anarchic free-for-all. That must be reassuring to the US and other governments who are prosecuting the current war.

NO SAFE HAVEN FOR TERRORISTS

There are many other ways in which the ICC, as it is currently devised, could benefit the US. The ICC operates on the principle of treaty-based, not universal, jurisdiction. This means that it will only have jurisdiction over crimes that are covered by the statute, and over nationals from the states that ratify. Nonetheless, the court's eventual goal is a global system of justice that will deny a safe haven to war criminals and perpetrators of genocide and crimes against humanity.

The Bush Administration wants to deny a safe haven to terrorists like Osama Bin Laden, and once again the ICC might help. The court will not have a mandate to prosecute the crime of terrorism (which has proved difficult to define with precision.) But lawyers agree that the September 11 terrorist attack on New York could qualify as a "crime against humanity" under the ICC statute because it stemmed from a clear policy of mass murder against innocent civilians by an "organized group."

In other words, if the court were in existence today it could go after Osama Bin Laden and the other leaders of the Al Qaeda network. In snubbing the ICC, the US is turning its back on an ally in the war against terrorism.

In a wider sense, the Bush Administration is also snubbing international law at a grossly insensitive moment.

Some feel that the US-led campaign against terrorism is already skirting dangerously close to illegality because the US has not sought specific UN authorization for bombing Afghanistan.

Under its Resolution 1368 of September 12, the Security Council authorized the United States to take "all necessary measures" in its self-defense. This appears to authorize the use of force.

But the precise application of this resolution to the campaign in Afghanistan will surely come under great scrutiny if more civilian targets are hit. Senior US officials have also toyed openly with the idea of allowing the CIA to assassinate suspected terrorists, which many would also consider to be at odds with international law.

At a time like this, the Bush Administration needs to reassure international opinion by making a commitment to international law – not raising unwarranted fears about an international court of law. Quite simply, it makes no sense.

ALLIED ANGER

This, ultimately, is why America's closest allies are fuming about ASPA. They are not appeased by the fact that ASPA would apparently permit American troops to storm the ICC and rescue any of their own nationals who happened to be facing prosecution. That, in their view, merely adds to the impertinence. Nor are they relieved to be exempted from ASPA's prohibitions against receiving military assistance.

No - they are just plain angry that the Bush Administration would chose a moment like this to be supporting a proposal that is so plainly self-defeating. Two weeks ago, on October 1st, the German government sent a note to other EU governments asking that a joint letter be sent to the US Secretary of State Colin Powell warning that ASPA could threaten "common efforts" to build the coalition against terrorism.

The letter was never sent because the British objected – even though Britain is one of the latest governments to ratify the ICC.

But the message was still clear enough: if the United States wants support from its allies for the rapidly expanding war against terrorism, it cannot continue to oppose international law for base political reasons.

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