Something About The Law

This is a post from Chand Chopra, III year NALSAR and currently pursuing an exchange program at the University of Illinois at Chicago.

This post is mostly from Philippe Sands book, “Lawless World.” In the Chapter on The International Criminal Court (ICC) he discusses the attempts made by the United States to undermine the importance and jurisdiction of the ICC. This is a summary of his opinions and the data is mostly his.

The US has been an active opponent of the ICC when it comes to exercising jurisdiction on American Nationals. The discord can primarily be attributed to the Bush administration which often argued that the Court’s jurisdiction was too broad, because the Court could prosecute and convict American Nationals even though the US was not a party to the Rome Statute. This is true because the court has jurisdiction not only over nationals of party countries, but also over any person who commits an international crime on the territory of a State party. This would ideally (if local remedies are exhausted and the conditions before approaching the ICC are met) bring Bush, Cheney, Rumsfield et al under the jurisdiction of the ICC for the abuses committed during the Iraq war. ( It would be interesting at this point = to see the complaint filed by Prof Francis A. Boyle- Professor of International Law at the University of Illinois’ Law School, against Bush, Cheney et al here

Knowing fully well the dangers of being held accountable, In may, 2002 the Bush Administration announced that it would not ratify the Rome Statute. Three months later, the Congress passed the American Service members’ Protection Act, which is intended to intimidate countries which exercise their sovereign right to ratify the Rome Statute. The Act authorises the American president to use “all means necessary and appropriate” to release any American national who is being detained or imprisoned by or on behalf of or at the request of the ICC. Often times referred to as the “Hague Invasion Act”, it prohibits all American cooperation with the ICC including the sharing of any intelligence. It prohibits the participation of American troops in UN peacekeeping operations unless they are granted complete immunity from the risk of prosecution before the ICC. Acting under this provision the administration threatened to block the August 2003 UN peacekeeping operation in Liberia until it had obtained an exemption for personnel from nonstate parties to the ICC from the ICC and from any other jurisdiction except that of the sending state. Later that month it held up the adoption of a Security Council resolution condemning the attack of August 19 against the UN headquarters in Baghdad until references to the ICC in the draft resolution had been removed.

The Act also prohibits the US from providing military assistance to the government of a country that is a party to the ICC, although an exception has been carved out for all NATO countires and major non-NATO allies (such as Egypt, Israel, and Jordan) and Taiwan. The President can waive prohibitions for specific countires on the grounds of national interest or where the country concered entered into an agreement preventing the ICC from proceeding against the US personnel who are present in that country. Waivers have been adopted for more than 30 countries.

The Bush administration had an ambitious program to pesuade every country in the world- including its allies- to agree that they will not transfer to the ICC any American, under any circumstances. This effort was justified based on Article 98(2) of the Rome Statute which prevents the ICC from ordering a party to the Statute to surrender to it certain “sent” persons who are protected by international agreements, unless the State which has “sent” that person agreed to his or her surrender to the Court. The intention of the drafters was limited to diplomats and military personnel already protected under international agreements.The drafters did not envisage people whose travels were totally unconnected with the exercise of official State functions, such as tourits or businessmen, even if they were former government officials. Augusto Pinochet (who went to the UK in 1998 for medical reasons) or Henry Kissinger (who visited the UK in 2003 to publicize his new book) should not be able to benefit from the immunity under Article 98(2).

After the Henry Kissinger episode, the United States persuaded more than 74 countries to enter into agreements, purportedly, under Article 98(2) including atleast 32 States that are parties to the ICC, to undertake not to surrender any American national to the ICC without the consent of the US, under any circumstances. In return, the US gives no undertaking to investigate or prosecute any American who may have been involved in war crimes, crimes against humanity or genocide. It is not surprising that these bilateral agreements have come to be seen as bilateral immunity agreements. Some 45 countires refused to sign these agreements and half lost American military aid as a result. The nations of the Caribbean Community have protested the punitive actions taken by the US against 6 of its members who are ICC mernbers but refuse to sign these immunity agreements.

All these efforts made by the US points to political arrogance and undermine the very purpose for which the ICC was established. While several countries have expressed their concern over such efforts, the US has long been seeing international law as a threat to its sovereignty and has been actively distancing itself from meaningful international conventions. It is not a party to most international agreements only because of the repulsion against International Law that has been infested by the Bush administration .It remains to be seen what President Obama does to override the discontent that the international community faces when it views the US vis-à-vis international agreements and the ICC.

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