"Governments should resist the Bush administration's latest blackmail," said Kenneth Roth, executive director of Human Rights Watch. "At a time when it is fighting a global war on terrorism, the administration is unlikely to jeopardize its military relationships around the world because of the remote possibility that a U.S. national will be unfairly prosecuted."
Canada, Norway, Slovakia, Switzerland and Yugoslavia have already announced that they will not be rushed into immunizing U.S. nationals without first consulting other governments. The European Union (E.U.) agreed that no member state should begin negotiating an exemption for U.S. nationals until a common European approach is discussed. The European Commission criticized Romania, a candidate to join the E.U., for agreeing to such an exemption.
At issue is Article 98 of the court's treaty, which was designed to allow governments to devise orderly procedures to implement the treaty's preference for prosecutions by national authorities. As Human Rights Watch explained in its letter, this provision was premised on the court's ability to take jurisdiction of a case should it find that an investigation or prosecution was not conducted in good faith. Because the Bush administration refuses to cooperate with the court and rejects that oversight function (even for crimes committed on the territory of governments that have ratified the ICC treaty), governments would violate their treaty obligations if they surrender U.S. suspects to the United States.
In recent weeks, the Bush administration has approached dozens of governments seeking Article 98 agreements against sending any U.S. suspect to the ICC. To pressure them to agree, the administration is citing newly passed legislation, the American Servicemembers' Protection Act. The law has been dubbed the "Hague Invasion Act" because it authorizes the use of military force to free U.S. and allied suspects from detention by the court. It also bars various forms of U.S. military assistance to governments, other than NATO members and specified allies, that refuse to sign Article 98 agreements, unless the president agrees that continued military aid is in the national interest.
"It's an empty threat," said Roth. "The law makes an exception for military aid that serves the U.S. national interest. The last time I checked, Washington doesn't hand out military aid that it doesn't believe is in the national interest."
Human Rights Watch noted the misplaced priorities behind this threat. "To avoid the remote possibility of a U.S. national being unfairly prosecuted, the Bush administration is disrupting relations with its closest allies," said Roth. "And at a time when Washington is trying to rally global support to combat terrorism, it is threatening to undermine a new institution of justice for comparably severe crimes. This is a triumph of ideological aversion to the court over any other view of the national interest."
Yugoslavia, which joined the ICC in September 2001, illustrates these warped priorities. Facing pressure from the Bush administration to sign an Article 98 agreement, Belgrade has insisted on consulting with European governments before proceeding. Yet this pressure is sadly ironic. With one hand, Washington rightly presses Belgrade to turn over indicted Yugoslav war criminals to the Hague-based International Criminal Tribunal for the former Yugoslavia. With the other hand, the Bush administration is trying to prevent Belgrade from surrendering any future U.S. suspect wanted by the Hague-based International Criminal Court.
"This stunning hypocrisy sends a signal that the rule of law is only for other people, not for U.S. nationals," said Roth. "It cannot be in America's long-term interest to undermine the rule of law in this way."
The ICC's jurisdiction began on July 1, 2002. On September 3, the court's historic first Assembly of States Parties will convene at United Nations Headquarters in New York. Made up of states that have ratified the ICC treaty, the assembly is the ICC's governing body. Seventy-seven states have ratified the treaty, including, most recently, Colombia - a country, along with the Democratic Republic of Congo, that is a likely candidate for the court's first case. More states are expected to ratify the treaty soon in order to participate in the election of judges and the prosecutor early next year. The court's "Advance Team" is already at work in The Hague creating the technical and administrative infrastructure that the court will need to open in 2003.