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Bush 'Unsigns' War Crimes Treaty

The Bush administration has pulled out of the treaty to establish the International Criminal Court -- a move that is both unprecedented and foolhardy.
 
 
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The Bush administration Monday formally renounced its obligations as a signatory to the 1998 Rome Statute to establish an International Criminal Court (ICC). Critics say the decision to "unsign" the treaty will further damage the United States' reputation and isolate it from its allies.

"Driven by unfounded fears of phantom prosecutions, the United States has hit a new nadir of isolationism and exceptionalism," said William Schulz, executive director of Amnesty International's U.S. section (AIUSA).

A simple three-sentence letter to U.N. Secretary-General Kofi Annan formally ended U.S. participation in an agreement to create the world's first permanent tribunal to prosecute war crimes, genocide, and other crimes against humanity. In the letter, Undersecretary of State for Arms Control and International Security, John Bolton, asserted that Washington "does not intend to become a party to the (Rome Statute of the ICC)" and that it "has no legal obligations arising from its signature (to the treaty) on December 31, 2000."

The ICC treaty -- which was signed by President Bill Clinton -- has been signed by almost 140 countries and ratified by 66 and takes formal effect July 1.

Right-wing hawks in the Bush administration have been gunning for the ICC even before the inauguration. The author of the U.N. letter, John Bolton, was perhaps the most outspoken foe of the Rome Statute in Washington even before his appointment to the State Department. As vice president of the neo-conservative American Enterprise Institute and a trusted adviser of Sen. Jesse Helms, Bolton argued that the Court compromises U.S. constitutional guarantees, U.S. sovereignty, and could be used to pursue politically-motivated prosecutions of U.S. troops stationed overseas.

He also helped draft a pending bill in Congress, the American Servicemen's Protection Act (ASPA), which not only bars any U.S. cooperation with the court, but also bars U.S. military aid to other countries unless they agree to shield U.S. troops on their territory from ICC prosecution. It also bans U.S. troops from taking part in UN peacekeeping operations unless the UN Security Council explicitly exempts them from possible prosecution.

One version of the bill, which is still being discussed in Congress, would open the way for the president to use force to free U.S. prisoners hauled before the ICC, which is to be located at The Hague, in the Netherlands.

The administration endorsed ASPA last fall on the condition that the president is given the authority to waive any of its provisions if he determines it is in the national interest to do so. Defense Secretary Donald Rumsfeld, among other unilateralist members of the administration, also signed a letter endorsing ASPA before Bush was inaugurated.

The Undersecretary of State for Political Affairs Marc Grossman reiterated concerns about U.S. sovereignty Monday when explaining the administration's decision. He complained the ICC and its prosecutors will not be under the control of the UN Security Council, where Washington has veto power. He expressed concern that citizens of countries that are not party to the treaty will still be subject to the Court's jurisdiction. Grossman also warned of a "chilling effect on the willingness of States to project power in defense of their moral and security interests" as the United States did in ousting the Taliban regime in Afghanistan.

The decision to "unsign" the ICC treaty followed a high-level debate within the administration between unilateralists -- mainly Vice President Dick Cheney and Bush appointees at the Pentagon -- and senior State Department officials who argued that the move would needlessly alienate European allies.

The hawks, who have strong support among Republican right-wingers in Congress, wanted to go much further by launching a campaign to undermine the treaty and the Court, as evident in the ASPA bill. One of the favored measures includes banning U.S. military aid and other assistance to countries which ratify the treaty or actively co-operate with the Court.

But EU leaders warned the United States last week that any deliberate effort by Washington to destroy the Court could do serious damage to trans-Atlantic ties -- perhaps a reason why cooler heads seem to have prevailed.

"What (the president) wanted to do today was to make our intentions clear and to not take aggressive action or wage war, if you will, against the ICC or the supporters of the ICC," said Pierre-Richard Prosper, Washington's ambassador-at-large for war crimes issues, after the announcement.

Prosper, however, stressed that the Court should not expect Washington to cooperate with it in any way. The U.S. will not provide funding, witnesses, or evidence, he said. And Washington will seek assurances from countries where U.S. troops are deployed that they will not be handed over to the ICC.

Critics and Washington's own allies have been quick to criticize the administration's decision, dismissing its concerns as largely unfounded.

"The European Union is an organization that tends to respect multilateral agreements and we would very much like to see the United States joining this effort, and we regret that it is not so," said EU foreign policy chief Javier Solana after the announcement.

In private, Solana has reportedly been far less restrained in voicing his unhappiness.

All but one of Washington's EU allies have ratified the Statute (Greece is expected to complete ratification in the coming months), and several European leaders, including British Prime Minister Tony Blair, have personally lobbied top administration officials, including Bush, against renouncing the treaty.

"Our allies do not share our fears, nor do they succumb to them. British, Canadian and German troops are fighting alongside the U.S. in Afghanistan, and yet their governments are leaders in forming the Court." Amnesty International's Schulz said. Britain, Washington's most important military ally in Afghanistan, has ratified the treaty with no apparent concern that it is exposing its troops there to possible prosecution by the ICC.

Schulz and others also claim safeguards against political or arbitrary prosecutions are built into the treaty. For example, under the treaty, the ICC can take only cases that national courts are clearly unable or unwilling to prosecute.

The decision to unsign may also be largely symbolic. Human rights advocates say that renouncing Clinton's signature will have no legal effect, since the treaty gives the Court universal jurisdiction.

"'Unsigning' the treaty will not stop the Court," said Human Rights Watch executive director Kenneth Roth, who called the move "an empty gesture" and "a triumph of ideology over any rational assessment of how to combat the worst human rights crimes."

But that does not mean Washington's withdrawal will not have consequences. Apart from damage to Washington's ties with its European allies or to its image abroad, the decision may set a dangerous precedent in international law.

"This unprecedented action suggests to the world that the signature of a U.S. president lacks enduring meaning," said Mark Epstein, the director of the World Federalist Association. "At the very time, the U.S. seeks signatures and ratifications of anti-terrorist treaties, an 'unsigning' by the Bush administration will undermine the power of the international treaty system."

And worse, it may encourage others to follow the U.S. lead.

"Other countries might well use this precedent to justify backing out of international commitments that are important to the U.S.," noted Michael Posner, director of the New York-based Lawyers Committee on Human Rights.

Jim Lobe writes on foreign policy issues for Alternet, Inter-Press Services, and Foreign Policy In Focus.