Global Policy Forum

By Alan Boyd

The United States has used its military clout in Asia to reinforce an extraordinary campaign of sabotage against the world's only permanent war crimes tribunal - Washington says it has no right to try US nationals - but the cost may be scars in bilateral foreign relations in Asia, and elsewhere. One year after the first judges were sworn in for the International Criminal Court (ICC), only five Asian countries have accepted its authority, the lowest representation of any region worldwide. Yet 13 states in South and East Asia, and a further five Central Asian republics, have signed a contrary agreement with the US that seeks to undermine the court's jurisdiction by withholding the right to try US nationals. They signed under a threat of aid withdrawals involving tens of millions of dollars in the defense field, threats that are already being carried out against both neutral states and wavering allies alike in other regions.

The US contends that it is safeguarding the interests of Americans engaged in peacekeeping and humanitarian missions in more than 100 countries - protecting them against what the State Department terms "politically motivated investigations and prosecutions" by the ICC. Such is the White House's determination to nullify the court, in an exercise of diplomatic browbeating almost unprecedented for a global treaty, that senior State Department officials have taken to describing the issue as "macro-constitutional" for US interests.

US denounces ICC as un-American

"Subjecting US persons to [the ICC] treaty, with its unaccountable prosecutor and its unchecked judicial power, is clearly inconsistent with American standards of constitutionalism," John R Bolton, the under secretary of state for arms control and international security, said in a recent address. "Specifically, the ICC is an organization that runs contrary to fundamental American precepts and basic constitutional principles of popular sovereignty, checks and balances, and national independence," he added. President George W Bush is so concerned that American values are being compromised that he has launched a three-pronged offensive against the ICC with the support of a powerful conservative business lobby. In May 2002 he reneged on his predecessor's acceptance of the treaty: in effect, the US un-signed former president Bill Clinton's endorsement, while declaring it was no longer bound by the ICC provisions. Bush had already won a perfunctory United Nations Security Council resolution removing US peacekeeping troops from the court's jurisdiction, only to see the UN retract the offer for US troops who were serving in East Timor.

Washington responded by vetoing an extension of the UN peacekeeping operation in Bosnia-Herzegovina until the Security Council agreed to a blanket exemption for US peacekeepers everywhere. The UN eventually relented, but granted only a one-year reprieve. Worried that the Security Council's mandate was being abused, European leaders persuaded the US to negotiate bilateral impunity exemptions through Article 98 of the ICC treaty, which had been inserted as a release clause for exceptional cases. As extra ballast, the US Congress approved an American Servicemember's Protection Act last August, requiring the president to cut off military aid to countries that have ratified the 1998 Rome Statute establishing the ICC, but have not signed an Article 98 agreement.

US law declares war on international court

"The act would be funny were it not so tragic and sinister a piece of legislation. The act literally declares war on the court and tells the rest of the world to go to hell," said Professor Makau Mutua, a former chairman of the American Society of International Law, who is leading a campaign against the US legislation. "In a very bizarre clause, it authorizes a US 'invasion of The Hague', the seat of the court, to free US and certain other allied personnel detained or imprisoned by the court. Here, the American president is authorized to 'use all means necessary and appropriate' to free US personnel. What will the US do? Bomb The Hague?" Mutua asked. Participation of US personnel in peacekeeping operations is prohibited under the act unless they are guaranteed immunity from the court, though the president is permitted to waive retaliation when this is deemed "in the national interest".

Defining the "national interest" has proved to be an interesting exercise and mighty provide some pointers on Washington's emerging spheres of influence. South Korea, Japan and the Philippines, all viewed as key military allies or potential partners in the war against terrorism, have been granted exemptions; Seoul got the nod even though it had ratified the ICC treaty. Tajikistan, expected to play a leading role in the Pentagon's base expansion in Central Asia, also signed the treaty, but was given a permanent waiver from Article 98 retaliation. Afghanistan and Iraq gained partial waivers due to their involvement in anti-terrorism operations.

Some nations get waivers from aid cuts, some don't

But Pakistan, which has provided much of the logistical and intelligence support for the US offensives in Afghanistan and Iraq, was denied a waiver. So were India and Thailand, two other countries of strategic interest to Washington. In total, 10 Asian countries signed the ICC treaty when it was inaugurated in 1998 as a permanent tribunal to investigate and prosecute individuals accused of war crimes, crimes against humanity and genocide. China and Iraq were among seven dissenting votes. With the Bush administration mounting intense diplomatic pressure, only Afghanistan, East Timor, Tajikistan, Cambodia and South Korea fully ratified the court's provisions. Five others, Bangladesh, the Philippines, Thailand, Uzbekistan and Kyrgyzstan, dropped out.

Mutua claimed that the US had distorted the intent of Article 98, envisaged originally as a legitimate escape cause for individual states placed in a compromising legal position, to advance a selective foreign policies agenda. "That article, which provides that the court may not proceed with a request for the surrender of a suspect that would require the state to act inconsistently with its obligations under international agreements, was included in the treaty to facilitate an orderly and rational process for dealing with suspects among states cooperating with the court," he said. "The provision was not intended to permit states - such as the US - which have refused to sign or ratify the court treaty, to negotiate impunity agreements to exempt their citizens from the court or to undermine it." Applying the treaty in Asia would be fraught with difficulty, as the countries where individuals are most likely to be targeted for prosecution, including Indonesia, Myanmar, North Korea, West Papua and Sri Lanka, are ambivalent to outside intervention.

ICC cannot try Khmer Rouge

As its mandate is not retroactive, the ICC cannot try former members of Cambodia's Khmer Rouge, or the 1970s military dictators in East and Southeast Asia - even if they could be apprehended. Nevertheless, there is evidence that the US approach has damaged Washington's standing in this region, even though it has not exacted punitive measures against any Asian states. Aid has been withdrawn from about two dozen countries, but only in Europe, Latin America and Africa. The intensity of the White House's opposition to the ICC has also bewildered some close Western allies that have ratified the treaty, especially as its objectives appear to be loosely aligned with those of the court. European lawyers designed the ICC with the intention of avoiding accusations of politically motivated investigations and "victors' justice" that marred the post-World War II Nuremberg trials, and the more recent Yugoslavia and Rwanda tribunals.

By assigning individual responsibility, it was hoped that courts would shy away from the difficult concept of assigning collective blame, and make judgments without the pressures of ideology or diplomacy. Already this approach has been undermined in Iraq, where the fragility of Washington's position has become increasingly apparent because of an unfortunate juxtaposition of events. With one hand, the Bush administration has blocked efforts to have Saddam Hussein tried by the ICC. With the other, it is fielding accusations of human rights abuses by US occupying troops that will not now be heard in an open courtroom. "The administration's approach has created the impression worldwide of an aggressive and highly objectionable effort to hold US citizens - as well as foreign nationals working for the US government - above the law," Human Rights Watch executive director Kenneth Roth complained in a letter to Secretary of State Colin Powell in December. "The policy has been implemented with a 'big stick' and little concern for potential damage to respect for the rule of law, national democratic processes, human rights standards and even the US government's bilateral relations with its closest allies. "If the United States government is unwilling to contribute to strengthening the rule of law through the ICC, it should certainly not be a counterweight to progress," Roth argued.