Global Policy Forum

By Anthony Arnold

On September 3, 2002 the Assembly of States Parties, the governing body of the International Criminal Court (ICC), convened its inaugural meeting. This initial gathering marked an achievement in the pursuit of international justice all the more remarkable in light of the harsh and unremitting opposition the Court has faced from the United States. US resistance to the ICC has not yet undermined the international commitment to the Court's creation and implementation. The resolve of the 76 nations currently party to the Treaty of Rome, which created the ICC, has been tested, but not broken. Thus far, they have stood firm and have been effective in preparing the ICC to achieve success.

On September 3, 2002, the Assembly of States Parties, the governing body of the International Criminal Court (ICC), convened its inaugural meeting. Although the ICC will not be completely operational until the second quarter of 2003, this initial gathering marked an achievement in the pursuit of international justice all the more remarkable in light of the harsh and unremitting opposition the Court has faced from the United States.

In May 2002, the Bush administration unceremoniously announced that the United States had withdrawn its signature from the treaty that would create the world's first permanent war crimes tribunal. Since that time, Washington has embarked on a campaign to undermine the Court's jurisdiction and frustrate its backers. The United States has raised several objections: that the Court would have the power to violate the sovereignty of countries that had not ratified the treaty; that its lack of accountability could result in politically motivated prosecutions of US officials; and that the Court could disregard or even undermine the power of the UN Security Council. These misgivings have been voiced repeatedly by an increasingly influential faction in the Bush administration that includes US Secretary of Defense Donald Rumsfeld.

Conservatives in Washington have used the attacks of September II and the war on terrorism to underscore US exceptionalism and to justify unilateralist policies. Underlying this viewpoint is the fear that US military action and participation in peacekeeping efforts would be severely limited if it were bound by any standard of international law. This fear is hardly justified, considering that countries with high rates of participation in UN peacekeeping missions, such as the Scandanavian states and Bangladesh, are largely supportive of the ICC. Nevertheless, this remains the primary reason for the US rejection of the Court. US officials argue that any US citizen, even a civilian leader, operating in a country subject to the Court would be vulnerable to allegations of criminal acts and could be unduly prosecuted. The Bush administration says that this would make the United States reluctant to put its citizens in situations where they could be at risk. As a result, the US diplomatic corps has fought vigorously to exempt US citizens from the Court's jurisdiction.

In July 2002, after threatening to reject all peacekeeping operations by using its veto power in the UN Security Council, the United States secured a oneyear grace period in which none of its citizens can be investigated or prosecuted by the Court. Since then, Washington has consulted with various EU members, including Italy and the United Kingdom, in an effort to form separate bilateral immunity agreements. Although all 15 members of the European Union have ratified the treaty and adopted a common position on the Court, the progress made by the United States illustrates the intensity of its opposition to the ICC and the strength of its bargaining position. The Bush administration has even hinted that the US role in NATO might change should any NATO allies refuse a bilateral immunity agreement. Furthermore, officials in the US State Department have reportedly warned their foreign counterparts that countries party to the Court could be denied US military aid if they do not sign an immunity agreement. Such coercion has only aggravated the tension between the United States and its closest allies, many of whom are strong supporters of the ICC.

However, US resistance to the ICC has not yet undermined the international commitment to the Court's creation and implementation. The resolve of the 76 nations currently party to the Treaty of Rome, which created the ICC, has been tested, but not broken. Thus far, they have stood firm and have been effective in preparing the ICC to achieve success. Once the ICC is fully functional and begins its first investigations in the spring of 2003, it will work to prosecute war crimes, acts of genocide, and crimes against humanity. It will assume the important role of assigning individual responsibility for some of the worst international crimes in an attempt to curb the deleterious effects of personal impunity and collective blame. Most importantly, the ICC will stand as a permanent safeguard for international justice, with its rulings gaining ever-greater respect and authority over time.

In this regard, the founding of the ICC marks the culmination of a struggle that began over 50 years ago at the Nuremberg war trials, when the United States promised that genocide and other crimes against humanity would "never again" go unpunished. That fading promise made the empty US seat at the September 2002 meeting all the more conspicuous. The proponents of the ICC hope that one day the United States will once again take its seat for the sake of international unity and justice. --

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