FORUM

The International Criminal Court will be up and running next year. Although virtually every Western democracy has ratified the treaty under which the Court will operate, the United States will not participate. The Bush Administration’s recent withdrawal from the Court is a significant mistake. On the macro level, it sends a message to the rest of the world that the United States will continue to renounce international obligations, as it has done in with the land mine ban treaty, Kyoto Protocol, biological weapons treaty, comprehensive test ban treaty and ABM treaty. This continuing pattern of unilateralist behavior will interfere with U.S. efforts to maintain its anti-terrorism coalition. On a micro level, the U.S. will not have input into selection of the Court’s judges and prosecutors.

Why did the Bush Administration pull out of the Court? The United States seeks to immunize its officials and soldiers from becoming defendants in war crimes prosecutions. Although many people in this country cannot imagine the Court would prosecute U.S. defendants, the Bush Administration knows there are reasons for concern. During the past 10 years, the United States has conducted intense bombing raids in Iraq, Yugoslavia and Afghanistan without United Nations approval. Many of the bombs dropped from U.S. warplanes contained depleted uranium warheads and cluster bombs, which killed large numbers of civilians, in direct violation of international law. Bush’s likely attack on Iraq does not have support of the international community.

The United States should not fear involvement in the International Criminal Court. The Court’s Statute contains checks and balances designed to ensure fairness. The eighteen judges will be elected by the member states. The powers of the prosecutor are well regulated. Cases can be referred to the Court by: (1) the United Nations Security Council, or (2) individual member countries or the Court’s prosecutor. Referrals under the second track are subject to the principle of “complementarity,” wherein the Court would be a last resort only when a state cannot or will not prosecute one of its nationals. The Court’s prosecutor must notify a state with a prospective interest in a case of the prosecutor’s intent to commence an investigation. If that state notifies the Court within one month that it is investigating the matter, the prosecutor must defer, unless the Pre-Trial Chamber decides the investigation is a sham. The decision of the Pre-Trial Chamber can be reviewed by interlocutory appeal to the Appeals Chamber. And, the Statute provides the Security Council with a collective veto over the Court, by allowing the Council to postpone an investigation or a case for up to twelve months, with provision for renewing that time period.

The United States government claims the Court doesn’t contain the due process protections guaranteed in our Constitution. Yet, the Statute contains Miranda-type warnings, the rights to a speedy and public trial, defense counsel, reciprocal discovery, confrontation of witnesses, and protection against double jeopardy. Although the Statute does not provide for a jury trial, neither do the Bush’s new military tribunals or the ad hoc tribunals spearheaded by the United States in Yugoslavia and Rwanda. And, unlike the military tribunals, there is provision for judicial appeal of convictions.

Washington further objects that the Court can take jurisdiction over nationals of a state that isn’t party to the Statute if that person commits a crime in the territory of a state party. This is nothing new. The United States has taken jurisdiction of foreign nationals in anti-terrorism, anti-narcotic-trafficking, torture, and war crimes cases. And, the core crimes prosecuted by the Court - genocide, war crimes and crimes against humanity - are crimes of universal jurisdiction under well-established principles of international law. Nazi Adolph Eichmann was tried in Israel for crimes he committed during the Holocaust.

At Nuremberg, for the first time, individuals were held criminally accountable for the most heinous crimes. The United States vigorously supported the Nuremberg Tribunal. Ironically, however, the same day Secretary of State Colin Powell paid tribute to the memory of the victims of the Nazi Holocaust, the United States government renounced the International Criminal Court.

Washington’s justification is based on a faulty premise, and opting out of the Court will ultimately harm the interests of the United States. Param Cumaraswamy, the United Nations special rapporteur on judicial independence, said “the U.S. government has effectively forfeited its leadership role in the search for justice and the promotion and the protection of the rule of law and human rights in the international sphere.” By renouncing the International Criminal Court, the United States has cut off its nose to spite its face.

May 21, 2002

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Discussion

JURIST welcomes your reaction to our columns and op-eds...

• Sunday June 09, 2002 at 4:57 pm
  Posted on the Radio Netherlands forum:
  We, the U.S., have opposed the creation of the International Criminal Court. Although this further propels us into "an alliance of one," I believe the Bush government was justified, at this point, considering the one-sided nature of "war crimes" prosecutions so far.
  As many of you know, we/NATO forced the Kosovo "War" on the Serbs with Appendix B of the Rambouillet Treaty -- an unconditional occupation/SURRENDER ultimatum even the many Serbs who hated Milosevic could not accept -- and the war ended after Senator Don Nickles exposed App. B during the 3May99 "war powers" Senate floor debate, after our military and intelligence officers bombed the Chinese and created such a world outcry, and after Henry Kissinger publicly condemned the war in the 31May99 NEWSWEEK. (I myself had cited App. B on H-Diplo -- see the discussion logs starting on 14May99.)
  (The war seems to have been an attempt by the Clinton regime to grab war/dictatorial powers -- not just a diversion from a sex scandal ... as the "Wag the Dog" movie was to lead us to believe. Members of our domestic and national security communities quietly and bravely opposed the Clinton regime, in many ways and areas.)
  WE are responsible for ALL the unnecessary deaths and suffering in Kosovo -- not Slobodan Milosevic -- and yet only he is on trial in your Haag ICTY courtroom. ?! THIS is the West's "justice?!"
  So will this new International Criminal Court indict Clinton, Albright, and the rest of the NATO leaders and statesmen responsible for the Kosovo War? (See the archived and current discussions on the Univ. of Pittsburgh international law department's JURIST webpage ... at:
  http://jurist.law.pitt.edu/issue_milosevic.htm
  OR is this ICC -- as we Americans suspect -- only another anti-military/security device which will instead begin by trying to prosecute our military and intelligence officers who attempted to END the war with the Chinese Embassy bombing? (If the Chinese were allowing their embassy to be used for Serb Army communications, they themselves were violating its neutrality and immunity, incidentally.)
  Judging by the way Holland's queen giddily gushed over Clinton, Europe is indeed easily seduced by leftist charismatics -- or just a whore for whomever it thinks is "good for business" -- so, again, we are probably right in opposing the ICC until it proves itself ... say, by indicting Clinton et al for Kosovo? We shall see.
  Of course, we have also spurned the Kyoto Treaty, even while the polar icecaps continue to melt and global surface temperatures continue to escalate. Even if the treaty is unacceptable -- excusing major polluters because they're "developing nations," while not demanding any basic commitment to the population control which is the root of all this to begin with -- Bush shouldn't have just blown it off ... arrogantly ... like he did, incidentally betraying an Election 2000 campaign promise.
  And then there is our Enron/FBI-scandal -pressured support of Israel ... and the "Axis of Evil" foolishness which only created a coalition of enemies and alienated allies and friends.
  ... and we thus continue to turn our world against us with the Athens-like arrogance Henry Kissinger warned us about (long before Osama bin Laden).
  Nevertheless, each issue must be judged objectively, and I and many other Americans are not about to trust Europe or the rest of the world with "war crimes" authority, after the propaganda and injustice we have seen from you so far.
  
  
  Lou Coatney
  Macomb Illinois USA

• Sunday June 16, 2002 at 7:26 pm
  The Bush administration is only doing its job,i.e., protecting American sovereignty. While it seems appropriate to compare the ICC with the tribunals for Yugoslavia and Rwanda, as well as Nuremburg, however there is a difference between establishing a special court to try international crimes as circumstances require and setting up a permenant court with almost limitless jurisdiction. One is acceptable and compatable with individual nations'sovereignty, the other is its oppossite.
  
  Roger Prather
  Lancaster, MA

• Wednesday June 19, 2002 at 4:23 am
  Last week news got out that the US Senate has passed a law/bill that allows US government to invade The Netherlands if any US soldier would ever be on trial at the ICC in The Hague (Den Haag). There is even already a name for that possible war; the "war of the Tulips". That would mean America invades a long time ally and friend, breaching our sovereignty to "rescue" one of your militairy people. Now while some or most in America think it is the Bush administration's right to protect American sovereignty, it means denying other countries theirs. Such an action would certainly be without the approval of the United Nations, and would certainly even start a case at the UN International Court of Justice, for dispute-settling between states, also in The Hague. The USA have, in the last 50 years, often completely denied the UN, NATO-countries and other nations interests in "securing" US interests. Most recent example is the invasion of Afganistan. The European Union has now stated to stand by The Netherlands, also in case of an American invasion. The bill is again proving that the NATO alliance and Atlantic friendship doesn't mean much to the USA. (The militairy actions in Yougoslavia and Kosovo were almost solely operations conducted by the US, without NATO and UN approval.) The relationship between Europa and America is getting more tense, also due to the conflict over steel-im/export tariffs and other arguments. Do the US no longer care for friends and allies? The two continents are slowly drifting away from each other. The unilateralism is isolating America, not only from Europe, is that what your administration wants? Be the lone gunman, fighting for "justice" and "peace"?
  
  B.J.G. Rentrop, Law student, University of Nijmegen
  Nijmegen, The Netherlands

• Saturday June 22, 2002 at 6:00 pm
  You only justify my/our opposition to the ICC, B.J.G. Rentrop, Dutch law student.
  Why wouldn't we want to rescue our military people when it is the politicians -- most of whom are lawyers B.J.G. -- who are responsible for (ordering) the war crimes? ??
  Before you demand anyone else be prosecuted for war crimes, you (Dutch, Europeans, etc.) should be cleaning your own house -- demanding the prosecution of the NATO (including Dutch!) politicians who (with Rambouillet App. B) forced the Kosovo War on the Serbs and are thus guilty of a war crime far worse than our My Lai Massacre, in premeditated intent and numbers of victims. Your (politicians') role in Kosovo was far worse than your soldiers standing by and letting the Serbs execute their enemies at Sbrenica.
  Why aren't you righteous Dutch (law students) not demanding Clinton, Albright, whoever your own politicians and statespersons are who supported the Kosovo War, et al be prosecuted as well as Milosevic? ??
  Some one of these years/days, the arrogance and hypocrisy of the self-sanctimonious West could enrage the Slavs, Chinese, or some other great power to the point of a 20-megaton warhead detonating over your precious Haag, so you would be wise to look at all sides of these issues before embarking on your crusades.
  Anyway, thanks for posting. Some of us (Americans) do understand how we are turning our world against ourselves with our unconditional opposition to the Kyoto Treaty, support of Israeli aggression, etc. Just make sure you've got your facts together before you unload on us.
  
  Lou Coatney
  Macomb Illinois USA

• Sunday June 23, 2002 at 5:33 pm
  I totally agree with you Lou Coatney. The ICTY is a joke!! (It is not controlled by the Dutch, the institution is here, it is a UN tribunal with international lawyers, judges and funding). All NATO countries are guilty of forcing the Kosovo war on Serbia and Milosevic. People like Kohl/Schröder, Blair, Kok, Clinton, Albright, and many more diplomats and advisers should be on trial in Den Haag if the tribunal was one with a just cause and not based on "victors-laws". It is a political tribunal, not an independant one. Even media-companies like AOL/Time/Warner are funding it, while firing propaganda on the people. Milosevic, who is undoubtetly there because of committed crimes, is calling for the tribunal to trial those people, but that may never happen. And it is a legitimate question if the ICC will be any better. However the most powerful nations in NATO, and probably in that order,(who conducted the bombings over Serbia and Kosovo, and had the largest say in the Rambouillet plans) are the US and UK, also Germany and EU as a whole, represented by Solana and others. They are therefore most responsible for the catastrophies in former Yougoslavia from 1991 to 2000. The purpose was dividing the country and getting bases of influence in the Balkan region. This, it seems, at all costs. Clinton didn't want to offer a deal Milosevic could accept; the Rambouillet-plans would give NATO the right to take control over all of Yougoslavia. US had already made plans to bomb the region, even before Milosevic had declined the "offer". US is to my opinion the biggest player in the NATO "game". Other NATO countries cooperated with the attacks and also have responsibility for causing the several wars. The Srebrenica massacre conducted while our "Dutch-bat" was virtually watching, caused our government to fall only this year and right before the parliamentary elections of may 15th. That is absolutely ridiculous, far too late and useless. Like medication with no cure that is purposely administered to keep the situation the same. I discussed this issue often with a few friends of mine. I did not intend to unload critisism solely on the US, i know all of NATO was wrong then and is wrong when Milosevic gets convicted (if he will be, it is not sure) for the atrocities and massacres wich he did not cause nor want. I tend to look at it from a relatively objective stance (if one can say that of himself). However I was astonished by the news your senate agreed on invading my country if the circumstances are met. The ICC cán be a good and just tribunal, however it must therefore not be under influence of politics, bussiness and media. I wonder if that is ever possible, especially in the current international situation. As for law students (or whatever student or young person with a international perspective), we obviously have no influence at all, however we will have in the coming years. Maybe something will change for the good, i would like to take part in that change. Maybe that is just naive and arrogant to say, having the small amount of knowledge of a mere student. Do you think the whole concept of the ICC is wrong, or just the current system or the international influence. Yours sincerely, Bas Rentrop.
  
  Bas Rentrop
  University of Nijmegen
  The Netherlands

  Do you think the whole concept of the ICC is wrong, or just the current system or the international influence. Yours sincerely, Bas Rentrop.
  
  Bas Rentrop
  University of Nijmegen
  The Netherlands

• Monday June 24, 2002 at 5:02 pm
  1. (You) students have much more power than you realize, Bas. Our students stopped the Viet Nam War ... and those who opposed the war now bear the guilt for what happened thereafter ... for what our military tried to stop from happening.
  2. The ICC is basically a GOOD idea. We must have the rule of law in the world if we are to survive, not only the rule of force.
  However, we Americans were angered when the UN talked about prosecuting our military and intelligence officers for bombing the Chinese Embassy in Belgrade. Remember how Clinton shrewdly allowed Senator Jesse Helms make a fool of himself and us on the floor of the UN?
  Our anger was justified. Notice also how Amnesty International still wants them prosecuted, while specifically stating it won't examine the Kosovo War's "justification."
  So much for AI as a moral force! It is anti-U.S. and anti-U.S.military. And we suspect the ICC will just be another attack on us by the European/international Left.
  3. Just today, Republican senators and Congressmen are objecting to the Bush government attacking Iraq without clear justification and Congress' approval ... so maybe Congress isn't the mob of militarists others in the world think? ??
  4. This is an excellent exchange of views, Bas. Thanks for your opinions and vantagepoint.
  
  Lou Coatney
  Macomb Illinois USA

• Saturday July 06, 2002 at 5:38 pm
  And now I learn that the ICC won't prosecute crimes before its inception ... like NATO's guilt for (causing) the Kosovo War (and all its deaths and suffering).
  So now anything our military people do will have to be defended in lengthy trials to the profit of lawyers and detriment of justice ... if the ICTY's performance is any indication.
  We should pull out of Bosnia andKosovo. Let the Dutch(!) show us how peacekeeping should be properly done -- right Bas?
  :-)
  
  Lou Coatney
  Macomb Illinois USA

• Monday July 15, 2002 at 1:35 am
  Whatever happened to the notion of American sovereignty? The founding fathers would be turning over in their graves. The ICC is not a US "obligation". Ms. Lefty Cohn states that their won't be a jury trial, but that's okay with her apparently because terrorists won't get one. Iraq needs to let inspectors back in with UNfettered access this time or face the consequences. She is just like the people who ignored what they should have known was going to happen sooner or later (and it did on Sept. 11th). Perhaps Israel would appreciate her work; I do not.
  
  Diana Nielsen
  CT/USA

• Thursday July 18, 2002 at 6:48 pm
  "Sovereignty" died at Hiroshima and is melting at the poles, Diana. Weapons of mass destruction and environmental devastation affect everyone, even outside the borders they occur within. (Although I am in basic agreement with the Bush government's concern about Iraq, Bush's apparent intention to act unilaterally -- instead of via the UN -- will trigger a Chinese attack on Taiwan ... and probably World War 3.)
  And if "Left Cohn" were so, she wouldn't be challenging the trial of Milosevic -- Kosovo was the Left's war crime war: see the postings at http://jurist.law.pitt.edu/issue_milo_discuss.php -- or the Israel Lobby's stampeding of Bush to attack Iraq.
  MC is a rare combination of beauty, brains, courage, and honesty, for which you might instead be grateful.
  
  Lou Coatney
  Macomb Illinois USA

• Tuesday August 06, 2002 at 1:55 pm
  I would think our invading Iraq without adequate justification would constitute a war crime which the ICC would prosecute -- with or without our cooperation.

  While the world community -- from which we are becoming more isolated every day -- isn't powerful enough to come into the U.S. and arrest someone, being internationally wanted could certainly curtail a president's international itinerary.
  
  Lou Coatney
  Macomb Illinois USA

• Saturday September 14, 2002 at 10:19 am
  After the WWII, Americans have been prosecuting their enemies(the losers)i.e. Germans and Japanese. All their generals were sentenced to death for crimes committed by their soldiers. But later, in Korea and Vietnam, millions died because of deliberate destruction of civilian centres by Americans. The Americans also carried chemical warfare on the poor Vietnamese, dropping Agent Orange all over Vietnam. The effects are still seen today; large areas of what used to be tropical jungle are now deserts. Thousands of deformed children still live in Vietnam. They even dropped bacteria on the Vietnamese civilians, causing the disease called Meliodosis. Surely these are crimes against humanity, and should be punished. But Vietnam is not powerful enough to force this on the Americans. Hence they (the Americans) have got away scot-free. If there is an International Criminal Court, it would be easier to bring the culprits to boot, whether it is the USA or Russia or the UK. By the way, has anybody bothered to ask the Vietnamese what they thought of the 911 affair. If you remember, the Americans came to bomb Vietnam "to the middle ages", totally unprovoked by Vietnam. I'm sure the Vietnamese opinion would be of the utmost importance to the rest of the world, esp those outside Asia. What happened to Vietnam must not happen to other countries, including Iraq. If the Americans(with their British puppy-dog under their armpit), can get away with destroying Iraq, then no country is safe from the trigger-happy American cow-boy.
  
  SeeKayEs
  Malaysia.

• Friday September 05, 2003 at 1:43 pm
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