Global Policy Forum

By Kenneth Roth*

Defense Secretary Donald Rumsfeld may see a divide between "old" and "new" Europe, but Europe and much of the rest of the world are standing united behind what might be called "new justice."

On Monday, the respected Argentine jurist Luis Moreno Ocampo was sworn in as chief prosecutor of the International Criminal Court after being elected by the court's 90 member governments. This historic institution is now open for business, ready to prosecute those who commit genocide, war crimes or crimes against humanity.

Unlike the "old justice" of impunity that allowed the likes of Augusto Pinochet and Pol Pot to go unpunished, the "new justice" of the international court, known as the ICC, reflects a growing global determination to bring the worst human rights criminals to justice. Yet the Bush administration continues its campaign against the court, although it is increasingly isolated in its opposition.

On June 12, for example, Rumsfeld announced that Washington would oppose further spending on a new NATO headquarters in Brussels until Belgium repealed its universal jurisdiction law that allows the perpetrators of atrocities to be prosecuted in Belgian courts. Rumsfeld made the threat even though Belgium adopted legislation in April that provides ample protection against misdirected cases, while allowing its courts to continue as a forum of last resort for atrocity victims.

Also on June 12, in the United Nations Security Council, the Bush administration secured renewal of a one-year exemption from ICC jurisdiction for American troops involved in UN-authorized military operations. After the extraordinary tensions over Iraq, the council wasn't game for another fight with the United States. Still, Washington had hoped to pave the way toward a permanent exemption. Its exceptionalism was greeted by a chorus of governmental objections.

Meanwhile, U.S. envoys have been circling the globe threatening to cut off military aid and other benefits to any government that won't agree by July 1 never to send a U.S. suspect to the ICC. The European Union and its associated states have stood up to this strong-arming, but weaker and more vulnerable governments are having a harder time resisting.

The Bush administration tries to justify its quest for such agreements by saying that it doesn't want to be held to a treaty it hasn't ratified. But that falsely characterizes the issue. No one suggests that, without ratification, the ICC should bind the United States. Rather, the question is whether other governments have a right to choose how to address crimes committed on their own territory, even if by U.S. citizens.

Under long-accepted legal principles, the British government, say, is entitled to prosecute an American for committing murder on the streets of London. Similarly, in the case of atrocities committed on its territory, Britain can choose to delegate prosecuting power to the ICC. That the United States hasn't ratified the ICC treaty is irrelevant. All that matters is that the government on whose territory an American might commit such crimes has ratified the treaty and granted prosecuting power to the court.

The Bush administration also tries to justify the bilateral agreements it is pursuing with other countries by citing a provision in the ICC treaty that allows governments to prioritize competing claims to prosecute certain suspects. For example, when a suspect's nationality differs from that of the territory where the alleged crime was committed, two governments have an interest in prosecution. In some cases, the ICC treaty allows these governments to agree between themselves which would have first crack at the case.

The provision must be read in light of the ICC's purpose, however. Ruthless regimes have long committed atrocities with impunity. Dictators occasionally promised prosecutions, but with no international justice system to hold them accountable, the pledges were usually empty. The ICC's ability to override national prosecuting efforts that are not conducted in good faith reflects the determination of ICC member states to move beyond unverified pledges. The agreements sought by the Bush administration would undermine this core ICC principle.

The stakes are high in the struggle to resist the Bush administration's vision of "old justice." If Washington prevails, other governments will inevitably try to evade ICC oversight. That will advance impunity.

Even if the United States succeeds only in immunizing its citizens from ICC scrutiny, the resulting two-tiered system of justice risks delegitimizing this important new institution.

About the author: The writer is executive director of Human Rights Watch.

FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C íŸ 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.