Israeli Prime Minister Netanyahu, ICC Prosecutor Khan, and former Israeli Defense Minister Gallant... credit © Israel Hayom
End Imperial Impunity
In These Times
26 December 1999
By Dr. Gregory Stanton
In Rome on July 17, 1998, 120 nations voted to create a permanent
International Criminal Court (ICC) to try war crimes, crimes against humanity
and genocide. Only seven nations opposed the measure,
including Iraq, China, Israel and the United States.
The ICC will be created when 60 nations ratify the Rome Statute, which is
expected to occur in 2002. The ICC will be headquartered in The Hague, with
18 judges and its chief and deputy prosecutors elected by a majority of
nations that have ratified the statute.
Only nations that have signed and ratified may contribute judges and
prosecutors. Eighty-nine nations have now signed the Rome Statute,
including all of America's NATO allies. Five have ratified.
The United States still refuses to sign.
This year, representatives of more than 100 nations have met three times at the
United Nations to settle the rules of procedure and evidence. The latest
preparatory session was held from Nov. 29 to Dec. 17, 1999.
The United States now acknowledges that the ICC will come into being with or
without its signature. And it recognizes that the Rome Statute cannot be
changed. Nevertheless, the United States used the August preparatory
meetings to lobby for binding agreements that would alter the statute
without formally amending it.
The most dangerous of the U.S. demands is immunity for official acts of
government officials. The so-called "like-minded states," which were
in the majority, rejected this position as an obstacle to the ICC's effectiveness.
It is outrageous that the United States is advocating it at all.
The United States is concerned that the President or Secretary of Defense,
or U.S. troops acting on their orders, could be charged with war crimes for
future acts like the bombing of Cambodia, the mining of Nicaragua's harbors
or the bombing of the Sudanese factory.
The United States wants a binding agreement that official government acts
will be immune from prosecution.
The country accused of crimes would be the judge of whether the acts were
official.
Such immunity for government officials would be a giant step backward for
international law.
Saddam Hussein could claim that his genocidal chemical
warfare against the Kurds was an official act to protect national security.
Even the Nazis could have claimed that their crimes were official acts.
Granting immunity to official acts would blast away the bedrock of
international humanitarian law, the Nuremberg Principles, which hold that no
person, whatever his rank, is immune from prosecution for crimes against
humanity.
The U.S. position would violate the Genocide Convention of 1948,
the Geneva Conventions of 1949, and the Torture Convention, all
international treaties that the United States has ratified.
The U.S position would destroy the purpose of the ICC, which is to render justice
when national courts cannot or will not punish leaders who commit genocide,
war crimes and crimes against humanity.
At a recent American Bar Association meeting, I pointed out the
shortsightedness of the U.S. position to a State Department lawyer. He
replied: "The president couldn't do his job very well from a jail in The
Hague."
But multiple safeguards built into the Rome Statute would prevent
indictments of American officials.
The statute gives national courts priority. If allegations are made
against a U.S. official, the ICC first must refer them to the U.S. government,
and if the United States conducts a good faith investigation
and finds them groundless, the ICC would lack any jurisdiction.
Further, war crimes must be intentional, providing a defense
against prosecution for accidental bombings. Finally. a majority of the UN
Security Council, where the United States wields great influence,
can take jurisdiction over a case away from the ICC.
The United States doesn't need "official acts" immunity to protect its
servicemen or leaders from ICC prosecution.
The situation is different for dictatorships. National courts have failed
to punish leaders who commit massive crimes against their own people
because those courts are controlled by the very same dictators
who commit the crimes.
Only an international court can bring tyrants such as Idi Amin
and Pol Pot to justice.
Does the United States want to create immunity from prosecution for the "official
acts" of such dictators?
Ad hoc tribunals like those for Yugoslavia and Rwanda are no
deterrent to future killers. They are slow, costly to establish, and will
create inconsistent international criminal law.
It is time for the United States to reassert its international leadership in
the enforcement of human rights by rejoining its allies and signing the Rome
Statute.
The United States should support justice for all; not justice for
all except government officials; not justice for all except the United
States.
The era of impunity for war crimes, genocide and crimes against
humanity is over.
Update to 2025: At the urging of former President Jimmy Carter, President
Clinton authorized Ambassador David Scheffer to sign the Rome Statute
of the ICC in 1999. President George W. Bush withdrew the U.S. signature after
taking office. [Whether such retractions are legal is still debated.] The U.S.
Senate has never ratified the ICC treaty. Under Presidents Obama and Biden, the
U.S. fully cooperated with and shared evidence with the ICC. Such cooperation
ended under President Trump. The Republican Party, except for exceptions like
former Senator Arlen Spector, remains opposed to U.S. ratification of the ICC Treaty.