Rejecting the Foundations of International Law

U.S. "Unsigns" the International Criminal Court Treaty

After choosing to misrepresent the fact that the September 11th bombings were crimes against humanity, and dictating a policy of war that will not end "in our lifetime", the Bush II administration exacerbates the 9-11 tragedy by repudiating and scrapping an entire body of codified international law including the International Criminal Court, the Comprehensive Test Ban Treaty (CTBT), an international convention to regulate the trade in small arms, a verification Protocol for the Biological Weapons Convention, an international convention to regulate and reduce smoking, the World Conference Against Racism, and the Anti-Ballistic Missile Systems Treaty.

On 1 July 2002 a permanent International Criminal Court (ICC) was created. The ICC purpose is to have a body that can prosecute serious crimes against humanity (no matter who committed them) and try people for gross violations of human rights. It would serve to guarantee human rights, independently. Sixty countries were needed to ratify the ICC which occurred on 11 April 2002. At the beginning of May, Bush II announced its resolve to "unsign" the Rome Statute creating the ICC. In his article, "Know the Truth About The International Criminal Court," Benjamin Ferencz explains how, "[a]s part of an ongoing campaign against the ICC, the United States threatened to withdraw its peacekeeping forces unless the new international court was divested of any authority to try Americans."

"On July 12, 2002, the United States badgered the Security Council of the United Nations into granting a limited exemption for American peacekeepers. It left no doubt that its opposition would continue unabated. Overwhelming protests from other nations reflected their resentment against every attempt to undermine the new court. . . . The US insistence upon getting advance immunity now and its involvement of the Security Council implies that the ICC, designed to curb major crimes that threaten peace, is seen by our government as a threat to peace. Such unfounded and absurd allegations make other nations nervous about US intentions.

"The US representatives seem to ignore the fact that the tribunal will have the entire Assembly of State Parties looking over its shoulders at all times. The Assembly now numbers 76 nations, including the entire European Community, England, Canada, Australia and other faithful friends of the US. They control the budget and can fire anyone who might be tempted to politicize the office. The ICC has no police force or enforcement mechanism. Its acceptance depends upon its reputation for integrity and competence. Politicization of the court would amount to its suicide.

"The American Bar Association, the New York Bar Association and the leading international lawyers in the country, including every living former Nuremberg prosecutor, all agree that it is in the interest of the US and its military to support the ICC. I believe the majority of the American public, if they knew the truth, would share the same conclusion.

"The Bush Administration's unparalleled renunciation of President Clinton's signature to the treaty astounded and angered many of our allies. . . . The US inspired the world at Nuremberg by demanding that never again would crimes against humanity be allowed to go unpunished. We weaken our standing in the world when we insist that law applies to everyone else but not to the United States. No nation and no person has a sovereign right to commit crimes against humanity with impunity.

"The best way to protect our military, and the peace of the world, is through universal and equal enforcement of the rule of law for everyone." [7]

Amnesty International challenged the U.S. "unsigning" pointing out that "the reasons it gave -- including that U.S. troops acting in accordance with the laws of war would be vulnerable to prosecution -- do not ring true; rather they sound like lame political excuses and rampant unilateralism."

"By the unprecedented action of `unsigning' a treaty, the U.S. darkens the shadow cast on its global leadership when it comes to international justice and accountability. It also sends a staggeringly dangerous message to nations where human rights are violated: that it is acceptable to `opt-out' of international agreements. After this shameful act, what will others believe is the value of the U.S. government's word or it's president's signature on a treaty?" [8]

The legal fallout created by the double-standards implemented by United States foreign policy under Bush II is unprecedented in scope and nightmarish in reach. On August 15th the State Department announced "The United States is seeking an agreement with Colombia to protect American military personnel in the South American country against prosecution by the International Criminal Court." Such policy is not only limited to Columbia. Bush II's intentions are to tie further U.S. military aid to a pledge granting the U.S. immunity for any recipient country that has ratified the ICC treaty.

"Department spokesman Philip Reeker noted that the Bush administration is seeking such agreements with a number of countries to ensure there will be no prosecutions for alleged rights abuses by American soldiers. U.S. officials are worried about politically motivated prosecutions. The United States maintains hundreds of troops in Colombia, mostly for training of troops for counternarcotics activities.

"Reeker, recalling comments by Secretary of State Colin Powell, said the administration is not resorting to threats in its attempts to secure immunity for American servicemen overseas.

"Under a new law, U.S. military aid would be cut off to countries that have ratified the treaty creating the court, except those granted a waiver. Countries granting an immunity pledge will continue to receive aid." [9]

In later July the UN Security Council granted the United States a 12-month grace period in which American peacekeepers would be exempt from prosecution by the ICC. According to Mexico's Representative Adolfo Aguilar Zinser, "The general opinion of the international community is that this is wrong." [10]

By its actions and deeds, Bush II's contempt for universal and equal enforcement of the same rule of law for everyone belies newspeak assertions "to ensure there will be no prosecutions for alleged [ie, human] rights abuses by American soldiers", or that "U.S. officials are worried about politically [ie, rule of law] motivated prosecutions". Benjamin Ferencz identifies the main argument made by the U.S. against the ICC and refutes it:

"The main argument made by the US is that American peacekeepers might be subjected to politically motivated prosecutions by the new tribunal. The facts have been egregiously misstated. There is no such danger.

"Only crimes committed after July 1, 2002, can be considered by the ICC. Jurisdiction of the court is limited to genocide, crimes against humanity and major war crimes of concern to the international community as a whole. Surely, American soldiers do not intend to commit such crimes. 18 highly qualified judges, male and female, sworn to uphold the law and justice, will be elected from those many nations that have ratified the treaty creating the court.

"No investigation can be started by the prosecutor without prior authorization by a three-judge panel. Appeals can be filed with a five-judge panel. The accused's country must be informed and the case transferred to them if they wish to try the suspect. Only leaders responsible for planning or perpetrating the major crimes are the intended targets and only if their own state is unable or unwilling to give them a fair trial. The US is not in that category." [11]

The U.S. does not want to be held accountable to the same rule of law as everyone else. Among other things, what Bush II is saying is that it doesn't want to have any independent judicial venue scrutinize its military ventures as reported by independent journalists.

With respect to Iraq, international law professor Francis Boyle emphasizes the Nuremberg Charter and the real reason Bush II is rejecting the authority of the ICC:

"`Leaders, organizers, instigators and accomplices' who participate in `the formulation or execution of a common plan or conspiracy' to commit any of the crimes proscribed by the Nuremberg Charter `are responsible for all acts performed by any person in execution of such plan.' The language concerning involvement in a criminal conspiracy, Boyle said, comes straight from Supreme Court-approved U.S. law, namely the Pinkerton rule.

"The White House lawyers are well aware that they are engaging in `an on-going criminal conspiracy to conduct a war of aggression,' Boyle said, adding, `The New York Times finally conceded that the reason the United States sabotaged the International Criminal Court (ICC) is because senior members of the Bush administration are afraid that they risk criminal prosecution.' The notion that the U.S. government rejects the ICC because it places military personnel at risk of prosecution is `nonsense,' Boyle said. It is the highly paid civilian planners at the Pentagon and the White House who have most to fear from the ICC because of their involvement in planning war crimes, according to Boyle." [12]