Global Policy Forum

By Robert Lane Greene

It should have been an uncontroversial United Nations vote, uniting the countries that had broken ranks over Iraq. But on August 1, France, Germany, and Mexico abstained on the Security Council resolution to send peacekeepers to war-torn Liberia. And they did so because--just like in the debate over Iraq--they found the demands of the United States unacceptable.

This time around, the point of contention was the International Criminal Court (ICC). Established by treaty in 1998, the court will try cases of genocide, war crimes, and crimes against humanity. But although the United States has been a vocal advocate of international justice--from the Nazi trials at Nuremberg to the prosecutions over atrocities in Rwanda and the former Yugoslavia--it has fought the new court bitterly. When it came time to vote on Liberia, the U.S. said it wouldn't support a resolution without a provision exempting its peacekeeping troops (and those of other countries who don't support the court) from the court's jurisdiction. Kofi Annan, even though he as a West African has a strong personal commitment to stopping the bloodbath in Liberia, announced that his sympathies were with the abstainers.

In the end, the United States got its way. But why is the U.S. so skittish about the court in the first place? American officials say they fear frivolous or politically motivated cases against the U.S. But the architects of the court designed it specifically to avoid any such thing from happening--largely because the U.S. insisted so at the time.

The first bulwark against frivolous prosecution is the court's official jurisdiction, which the charter spells out in great detail. The list includes genocide, extermination, and enslavement, as well as rape, torture, and murder "committed as part of a widespread or systematic attack directed against any civilian population." It's important to note that an isolated rape or murder by a haywire soldier does not fall in the ICC's purview; it only becomes a crime against humanity when part of a large-scale planned attack on civilians. One certainly hopes no Americans would ever take part in actions likely to bring down the court's wrath.

But there are other layers of protection, as well. A prosecution cannot go forward until a panel investigates the allegations and finds substantial evidence to support the charge. And, if the early appointments are indicative, this won't be some two-bit panel of judges with an anti-American agenda making those decisions. Indeed, observers worldwide hailed the appointment of the first chief prosecutor: Luí­s Moreno-Ocampo of Argentina, a former visiting professor at Harvard and Stanford who became famous for prosecuting members of Argentina's former military junta. If the court should begin to be packed with poorly qualified or anti-American judges (or if it functions badly for any other reason), America can withdraw from it.

Most important, though, the court has no jurisdiction over an alleged crime if the country accused makes a good-faith effort itself to investigate and, if appropriate, prosecute those responsible. This should keep America out of the defendant's chair, since it has a strong record of policing its own troops when they are accused of wrongdoing. William Calley, the platoon leader at My Lai, was sentenced to life in prison (though released after serving about four years). If for some reason the American civil and military justice systems ever balked at investigating credible war-crime allegations against U.S. personnel, then Americans themselves should be the first ones to be outraged.

Despite these safeguards, America has done everything it can to avoid the ICC's jurisdiction and, even worse, to destroy the institution itself. Last June, it sponsored a successful Security Council resolution exempting all peacekeepers from ICC prosecution for one year, and the resolution was renewed this year. As TNR has reported, it has also twisted the arms of military allies to sign bilateral deals exempting Americans from ICC prosecution. Most recently, America went so far as to withhold $2.7 million in support for Latvian troops in Iraq because Latvia would not sign an exemption. And now comes the Liberia resolution, which exempts not only the Americans but the Nigerians, also non-parties to the court's statute, who committed serious abuses (including summary executions and torture) in previous peacekeeping operations. President Bush has even signed the "American Servicemembers Protection Act" (ASPA), which not only forbids American authorities from cooperating with the ICC, but authorizes the president to liberate by force any American personnel held by the ICC. That's right: If necessary, we will invade the Netherlands.

Those close to the court wearily shake their heads when confronted with America's fury and fear. It's meant for Charles Taylor, not Donald Rumsfeld, they will tell you. It's meant to do a job America has long supported--bringing war criminals to book--but to do it better. A permanent court, as opposed to ad hoc tribunals like the ones for Rwanda and the former Yugoslavia, would be faster and more efficient, since it would not have to be created from scratch in each case. And it would do its work better, as it would gather experience and well-developed case law under a single roof.

But Americans of both parties cannot stand even the distant theoretical possibility that U.S. troops might be tried by foreigners. The ASPA passed by large majorities in Congress. Yet Bill Clinton refused for most of his term to sign the ICC statute, doing so only in the last hours of his presidency knowing that the Senate would never ratify it. George Bush formally removed America's signature, and has ramped up the efforts to kill the court. The public shunning of the United Nations in Iraq, the palpable loathing of even the remotest constraint on America's freedom of action, and the kind of bullying shown to Latvia is the reason more countries will not help America in Iraq and elsewhere. By attacking the ICC, America lets the world's warlords and genocidaires off the hook--and puts itself on trial instead.

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