America in the dock
by Michael Byers
:The Independent UK 09 March 2003
The new International Criminal Court has been set up to bring dictators and war criminals to book. So why does the United States stand alone against Europe in opposing it
On Tuesday, Tony Blair's efforts to straddle the divide between Europe and America will become even more strained. With the swearing in of 18 judges, the International Criminal Court will come to life in the face of hostile opposition from the United States (which already has legislation on its books authorising the President to use military force to rescue any soldiers detained in The Hague). Many of Britain's European partners, including Germany, the Netherlands and Belgium, count themselves among the strongest supporters of the new court.
The International Criminal Court is empowered to hear cases concerning war crimes and crimes against humanity, including genocide, the bombing of civilians, and systematic rape and torture. Unlike the Inter- national Criminal Tribunal for the former Yugoslavia, where Slobodan Milosevic is being tried, it is intended to be a permanent institution. Unlike the International Court of Justice, it is designed to deal with criminal cases against individuals, not disputes between states.
The court is mandated to deal with crimes committed after 1 July 2002, provided that either the accused are citizens of a country that has ratified the court's statute, or the alleged crimes were committed on the territory of a ratifying country – regardless of the nationality of the accused. The latter is intensely annoying to the US. With soldiers deployed in more than 140 countries, a view of the laws of war that is somewhat lax when compared to its allies, and anti-Americanism increasing worldwide, the US government worries that its foreign policy and military decision-making could be subject to unwanted judicial scrutiny.
Yet the statute's reliance on nationality and territorial-based jurisdiction is cautious. It was due largely to US pressure during the statute's negotiation that the jurisdiction of the International Criminal Court is not based on the customary international law principle of universal jurisdiction that was central to the Pinochet case. The US argues that, while it has long consented to territorial jurisdiction, that consent is irrelevant because it never contemplated that countries would seek to delegate that sort of jurisdiction to an international court. Other countries find the argument unconvincing, since customary law is by nature often somewhat ambiguous. To date, 89 countries have ratified the statute; another 50 have signed but not yet ratified. Although the ratifying countries include the UK, in the past year only one country has done more to undermine the court.
In June 2002, the US threatened to veto all UN peacekeeping operations unless the Security Council adopted a resolution to override the court's jurisdiction and provide immunity to any citizens of non-ratifying countries engaged in UN authorised operations. The Canadian ambassador complained that the provision of blanket immunity by way of a Security Council resolution would "dramatically alter and undermine" the court's statute. British diplomats were of the same view, but were soon instructed to support the American position. France, the only other permanent member of the council to have ratified the statute, was thus left on its own. In the end, it chose not to oppose the adoption of Resolution 1422. The best that Canada and other opponents of the US request could secure was a limitation of the immunity to a one-year period, when it will lapse unless a further resolution is approved.
The US mounted a parallel effort to secure promises from individual countries never to surrender US soldiers or officials to the International Criminal Court. Countries as diverse and vulnerable as East Timor and Romania were pressured into bilateral treaties. The US argues that these fit within a particular provision of the court's statute that was included to allow pre-existing "status of forces agreements" to be maintained. At first this argument was strongly opposed by the EU, which tried to present a common front on the issue. But in September 2002 the UK again broke ranks, leaving its European partners with little alternative but to concede.
These developments impact directly on the Iraq crisis. Any alleged war crimes committed by British forces in Iraq are subject to the jurisdiction of the International Criminal Court. Under the principle of command responsibility, this includes the Prime Minister. Moreover, the statute explicitly strips him and all other leaders of any immunity that might normally benefit heads of state under international law. The statute also includes a provision that enables countries that have not yet ratified it to accept the remit of the court with regard to specific situations. If Saddam Hussein were to do so now (a letter to Kofi Annan would suffice), the court would similarly have jurisdiction over any alleged crimes on Iraqi territory committed by American pilots, soldiers and politicians.
It is unlikely that the court would prosecute British or US soldiers or officials. The statute sets out a system of "complementarity", whereby priority is accorded to the good faith efforts of national courts to investigate war crimes. Provided that British and US military courts operate in the usual way, there is nothing to fear from the International Criminal Court. Indeed, US soldiers have operated across the Balkans without judicial hindrance even though the International Criminal Tribunal for the former Yugoslavia has had jurisdiction there since 1991.
Moreover, the temporary immunity accorded to the citizens of non-ratifying countries involved in UN authorised operations may well protect US soldiers active in Iraq. In resolution 1441, adopted in November 2002, the UN Security Council for the first time adopted the concept of "material breach", which the US had been advancing for several years as justifying the use of force against Iraq. The council also set conditions for material breach that Iraq has conspicuously failed fully to meet. It is difficult to imagine that the 15 members of the council did not understand what the US and Britain considered "material breach" to mean. The US thus has room to argue that its upcoming war is not only authorised, but that its soldiers and politicians also benefit from immunity from the International Criminal Court. This, again, is due largely to Tony Blair's actions last summer.
Legal protections aside, even the theoretical prospect of international prosecutions of its soldiers and officials has left the Bush administration apoplectic. An absolutist conception of sovereignty prevails in Washington, where international rules that might constrain the US are regarded as threats to American democracy. This view, when combined with the self-confidence, insularity and impatience that comes with overwhelming military superiority, assures that the single superpower will remain actively opposed to the International Criminal Court.
The result is a confrontation of perspectives and values of the highest order, with the righteous assertiveness of the US on the one hand, and more than 50 years of efforts to end impunity for the Pol Pots, Idi Amins and Slobodan Milosevics of our world on the other. Today, some of the US's allies are showing a willingness to stand up to George Bush, setting up a clash between the immovable object of right-wing America and the irresistible force of global justice. With the prospect that the Internat- ional Criminal Court will take an interest in the Iraq war, and with the immunity provided by resolution 1422 up for renewal in June, the Prime Minister may be facing a stretch too far.
Michael Byers teaches international law at Duke University, North Carolina
America in the dock
by Michael Byers
:The Independent UK 09 March 2003
The new International Criminal Court has been set up to bring dictators and war criminals to book. So why does the United States stand alone against Europe in opposing it
On Tuesday, Tony Blair's efforts to straddle the divide between Europe and America will become even more strained. With the swearing in of 18 judges, the International Criminal Court will come to life in the face of hostile opposition from the United States (which already has legislation on its books authorising the President to use military force to rescue any soldiers detained in The Hague). Many of Britain's European partners, including Germany, the Netherlands and Belgium, count themselves among the strongest supporters of the new court.
The International Criminal Court is empowered to hear cases concerning war crimes and crimes against humanity, including genocide, the bombing of civilians, and systematic rape and torture. Unlike the Inter- national Criminal Tribunal for the former Yugoslavia, where Slobodan Milosevic is being tried, it is intended to be a permanent institution. Unlike the International Court of Justice, it is designed to deal with criminal cases against individuals, not disputes between states.
The court is mandated to deal with crimes committed after 1 July 2002, provided that either the accused are citizens of a country that has ratified the court's statute, or the alleged crimes were committed on the territory of a ratifying country – regardless of the nationality of the accused. The latter is intensely annoying to the US. With soldiers deployed in more than 140 countries, a view of the laws of war that is somewhat lax when compared to its allies, and anti-Americanism increasing worldwide, the US government worries that its foreign policy and military decision-making could be subject to unwanted judicial scrutiny.
Yet the statute's reliance on nationality and territorial-based jurisdiction is cautious. It was due largely to US pressure during the statute's negotiation that the jurisdiction of the International Criminal Court is not based on the customary international law principle of universal jurisdiction that was central to the Pinochet case. The US argues that, while it has long consented to territorial jurisdiction, that consent is irrelevant because it never contemplated that countries would seek to delegate that sort of jurisdiction to an international court. Other countries find the argument unconvincing, since customary law is by nature often somewhat ambiguous. To date, 89 countries have ratified the statute; another 50 have signed but not yet ratified. Although the ratifying countries include the UK, in the past year only one country has done more to undermine the court.
In June 2002, the US threatened to veto all UN peacekeeping operations unless the Security Council adopted a resolution to override the court's jurisdiction and provide immunity to any citizens of non-ratifying countries engaged in UN authorised operations. The Canadian ambassador complained that the provision of blanket immunity by way of a Security Council resolution would "dramatically alter and undermine" the court's statute. British diplomats were of the same view, but were soon instructed to support the American position. France, the only other permanent member of the council to have ratified the statute, was thus left on its own. In the end, it chose not to oppose the adoption of Resolution 1422. The best that Canada and other opponents of the US request could secure was a limitation of the immunity to a one-year period, when it will lapse unless a further resolution is approved.
The US mounted a parallel effort to secure promises from individual countries never to surrender US soldiers or officials to the International Criminal Court. Countries as diverse and vulnerable as East Timor and Romania were pressured into bilateral treaties. The US argues that these fit within a particular provision of the court's statute that was included to allow pre-existing "status of forces agreements" to be maintained. At first this argument was strongly opposed by the EU, which tried to present a common front on the issue. But in September 2002 the UK again broke ranks, leaving its European partners with little alternative but to concede.
These developments impact directly on the Iraq crisis. Any alleged war crimes committed by British forces in Iraq are subject to the jurisdiction of the International Criminal Court. Under the principle of command responsibility, this includes the Prime Minister. Moreover, the statute explicitly strips him and all other leaders of any immunity that might normally benefit heads of state under international law. The statute also includes a provision that enables countries that have not yet ratified it to accept the remit of the court with regard to specific situations. If Saddam Hussein were to do so now (a letter to Kofi Annan would suffice), the court would similarly have jurisdiction over any alleged crimes on Iraqi territory committed by American pilots, soldiers and politicians.
It is unlikely that the court would prosecute British or US soldiers or officials. The statute sets out a system of "complementarity", whereby priority is accorded to the good faith efforts of national courts to investigate war crimes. Provided that British and US military courts operate in the usual way, there is nothing to fear from the International Criminal Court. Indeed, US soldiers have operated across the Balkans without judicial hindrance even though the International Criminal Tribunal for the former Yugoslavia has had jurisdiction there since 1991.
Moreover, the temporary immunity accorded to the citizens of non-ratifying countries involved in UN authorised operations may well protect US soldiers active in Iraq. In resolution 1441, adopted in November 2002, the UN Security Council for the first time adopted the concept of "material breach", which the US had been advancing for several years as justifying the use of force against Iraq. The council also set conditions for material breach that Iraq has conspicuously failed fully to meet. It is difficult to imagine that the 15 members of the council did not understand what the US and Britain considered "material breach" to mean. The US thus has room to argue that its upcoming war is not only authorised, but that its soldiers and politicians also benefit from immunity from the International Criminal Court. This, again, is due largely to Tony Blair's actions last summer.
Legal protections aside, even the theoretical prospect of international prosecutions of its soldiers and officials has left the Bush administration apoplectic. An absolutist conception of sovereignty prevails in Washington, where international rules that might constrain the US are regarded as threats to American democracy. This view, when combined with the self-confidence, insularity and impatience that comes with overwhelming military superiority, assures that the single superpower will remain actively opposed to the International Criminal Court.
The result is a confrontation of perspectives and values of the highest order, with the righteous assertiveness of the US on the one hand, and more than 50 years of efforts to end impunity for the Pol Pots, Idi Amins and Slobodan Milosevics of our world on the other. Today, some of the US's allies are showing a willingness to stand up to George Bush, setting up a clash between the immovable object of right-wing America and the irresistible force of global justice. With the prospect that the Internat- ional Criminal Court will take an interest in the Iraq war, and with the immunity provided by resolution 1422 up for renewal in June, the Prime Minister may be facing a stretch too far.
Michael Byers teaches international law at Duke University, North Carolina
