Fearing the ICC
July 6th, 2003
What does the United States dislike—or fear—about the International Criminal Court (ICC) that drives it to sign bilateral agreements with other countries exempting its troops from prosecution in the ICC?
The 1997 Rome Statute, as amended in 1998 and 1999, mandates the creation of the ICC and its composition. It has 18 judges and six organs: The Presidency, an Appeals Division, a Trial Division, A Pre-Trial Division, an Office of the Prosecutor and a Registry. The Rome Statute also includes a detailed prescription of the processes involved in prosecuting and trying anyone, as well as elaborate safeguards against such possibilities as double jeopardy and self-incrimination.
By near unanimous global consent in 1997, this permanent tribunal’s establishment was long overdue. Its creation was the result of the search for a means to address crimes against humanity that goes back nearly a hundred years to the early 20th century—a century of unprecedented human sufferings brought about by two devastating world wars.
The Preamble of the Rome Statute creating the ICC indeed points out that “millions of children, women and men have been victims of unimaginable atrocities” in the 20th century. “Such grave crimes,” it continues, “threaten the peace, security and well-being of the world.”
The most serious crimes “of concern to the international community as a whole must not go unpunished… their effective prosecution must be ensured by taking measures as the international level and by enhancing international cooperation.”
The Preamble also affirms UN principles, among them “that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State…”
While it will punish offenders, the intent of the ICC is to help minimize crimes committed against civilian populations in times of war—a purpose all men and women of goodwill would presumably welcome. Given the possibility that the 21st century may be another century of war because of the United States drive for world conquest, the ICC is thus of special relevance to the prevention of crimes against humanity.
But since 2002 the United States has waged a tough campaign against ratification of the Rome Statute that established the Court. The US campaign has included diplomatic pressure (“muscle diplomacy”), and the threat of withdrawing from, or not providing military aid to, those countries that ratify the Statute and that do not enter into a bilateral agreement exempting US troops from ICC prosecution.
A US law passed in 2002, called the American Service Members Protection Act, in fact provides that countries without a bilateral agreement exempting US troops from ICC prosecution will not get military aid. US policy also prohibits military aid to any country that ratifies the Statute.
Under US pressure, 48 countries, of which 18 had originally signed the Rome Statute in 1997, have so far signed bilateral agreements with the United States, in effect helping the US undermine the capability of the ICC to prosecute individuals, acting in behalf of states, who are accused of war crimes, genocide, and crimes against humanity.
Of these 48 countries, the Philippines was the 34th to sign a bilateral agreement with the US. Seven more countries have since done so, among them the Philippines’ Asean neighbors Thailand and Cambodia.
The possibility that these states will not ratify the Rome Statute is high. While the Philippine Senate, for example, has expressed readiness to ratify it, President Gloria Macapagal Arroyo has not submitted the Statute for ratification. It is unlikely that she will, just as it is unlikely that the other heads of the states that have signed bilateral agreements with the US will submit the Statute to their own treaty-making bodies for ratification. The reason: pledges of US military aid.
The Statute was initially signed in 1997 by 120 countries, but was opposed by seven, with 21 abstaining. Among the countries that refused to sign the Statute, China, Israel and the United States chose to openly state their reasons for their opposition.
Primarily the US claimed that its soldiers abroad could be brought before the Court on politically-motivated charges—a possibility to which soldiers from every country serving abroad would be vulnerable, but which the integrity of the ICC judges and the elaborate safeguards in place could very likely prevent.
The US did eventually sign the Statute. But this was during the Clinton administration. Citing the same reasons advanced by the Clinton administration in 1998, the Bush administration withdrew the US signature in May 2002.
It doesn’t take an over-active imagination to surmise that given the Bush administration’s drive for total US world dominance through the use of force, what it doesn’t want is for its soldiers and officials to be brought before the ICC for crimes under its jurisdiction.
The Rome Statute identifies a number of crimes for which responsible US civilian and military officials as well as common soldiers could be brought before the ICC. By invading Iraq the United States is also in violation of the fundamental UN and ICC principle banning the use of force and the threat of force against independent states. While offenses committed before the ICC ratification may not be brought before it, US troops now in Iraq, or those deployed in other countries, could in the future commit crimes that would fall under ICC jurisdiction.
Under Article 5, Part 2 of the Statute, four crimes are identified as within the Court’s jurisdiction: The crime of genocide, crimes against humanity, war crimes and the crime of aggression.
Each crime is defined in detail in Articles 6,7 and 8.
“Crimes against humanity” are thus defined in terms of specific acts, among them the use of torture, imprisonment or other severe deprivation of physical liberty, and persecution for reason of race, culture, religion, gender, political belief, or ethnic origin. Such crimes also include “enforced disappearances,” defined as “the arrest, detention, or abduction of persons by… a State or political organization, followed by refusal to acknowledge that deprivation of freedom, or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.”
“War crimes” are defined as consisting of, among other acts, “intentionally directing attacks against the civilian population… or against individual civilians not taking part in hostilities” as well as “intentionally directing attacks against civilian objects… which are not military objectives.”
War crimes also include “attacking or bombarding by whatever means towns villages, dwellings or buildings which are undefended and which are not military objectives.” It is also a war crime, according to the Rome Statute, to use “weapons, projectiles and methods of warfare which… cause superfluous injury or unnecessary suffering or which are inherently indiscriminate… ”
Obviously the United states is preempting the possibility that its troops, as the US embarks on an adventurist course of invasion, conquest, and regime change in furtherance of the New American Empire, may be brought before the ICC.
In that sense the Bush administration regards a fully functioning ICC sanctioned by the international community as a hindrance to its agenda of “full spectrum dominance” on land, air, sea and space. The ICC could put the acts of its soldiery—which in Iraq have included attacks on unarmed civilians and the bombardment of undefended towns and villages—under scrutiny.
Worse, these and other similar acts could be condemned as war crimes, shattering the US myth that it is engaged in the liberation of oppressed peoples. By signing a bilateral agreement with the US, the Philippines is on the other hand assisting the US drive to undermine international support for a tribunal meant to prevent war crimes and crimes against humanity.
(abs-cbnNEWS.com, July 2, 2003)