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Criminalization of the State:
Overcoming Impunity with the International Criminal Court
Non-governmental organizations and individuals from sixty-six different countries have filed 499 "communications" – or complaints – with the International Criminal Court (ICC), between July 2002 and July 2003. Many of them urge the ICC to investigate the United States conduct in the war on Iraq. The primary charge is that the U.S. committed an act of aggression against Iraq. The ICC has jurisdiction to punish the crime of aggression. However, this crime remains undefined in the ICC’s statute due to disputes among the states parties about how to define it.
The United States is not a party to the ICC treaty. The Bush administration has vigorously opposed it, for fear that U.S. military officials and personnel could be subject to "politically-motivated" prosecutions for war crimes.
In an unprecedented move last year, George W. Bush removed Bill Clinton’s signature from the treaty. A few months later, Bush signed into law the American Serviceman’s Protection Act, which restricts U.S. cooperation with the ICC and prohibits military assistance to states parties to the treaty unless they sign bilateral immunity agreements with the U.S. States which sign these "Article 98" agreements – referring to the section of the ICC statute that addresses treaties between countries – pledge not to hand over U.S. nationals to the ICC. The United States has reportedly extracted these agreements from 60 countries – primarily small nations, or fragile democracies with weak economies. And the U.S. has withdrawn military aid from 35 nations that refused to be coerced into signing Article 98 agreements.
The U.S. has also demanded express immunity from ICC prosecution for American nationals. This demand delayed the passage of several peacekeeping resolutions in the Security Council. But in 2002, the Security Council capitulated when it unanimously passed Resolution 1422, which called for one year of immunity for peacekeepers from countries not party to the ICC statute, and provided that immunity could be renewed in subsequent years. The resolution was renewed in June. But this time, the U.S. was unable to achieve unanimity. France, Germany and Syria abstained from the vote.
Ninety-one countries have signed on as parties to the ICC treaty. So why has the Bush administration resisted it so vehemently? Bush’s handlers were likely prescient about how the world would react to the United States’ illegal invasion of Iraq, which was not executed with Security Council approval or in lawful self-defense. They evidently knew they and their boss might be vulnerable to prosecutions for the unlawful killing of thousands of Iraqi civilians, the destruction of the civilian infrastructure, and the use of weapons of mass destruction – cluster bombs and depleted uranium – by "coalition forces."
A Preemptive War is a War of Aggression
The United States has sought to ensure the ICC’s legal processes do not jeopardize its role as global superpower by subjecting U.S. leaders to prosecution. It has consistently resisted definitions and jurisdictional provisions that may challenge U.S. impunity for wars of aggression.
Many ICC parties favor a definition of aggression set out in 1974 in General Assembly Resolution 3314, passed in the wake of Vietnam: "Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition."
Bush’s new doctrine of "preemptive war" is a license to prosecute wars of aggression. It runs directly counter to the United Nations Charter’s prohibition on the use of armed force except in self-defense or when authorized by the Security Council. A preemptive war is a war of aggression. "Operation Iraqi Freedom" falls squarely into this category.
More than 50 years ago, Associate United States Supreme Court Justice Robert Jackson, one of the prosecutors at the Nuremberg Tribunal, wrote: "No political or economic situation can justify" the crime of aggression. He added: "If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us." An impartial international criminal tribunal is necessary to prevent "victor’s justice," where only the vanquished are subject to prosecution.
Universal Jurisdiction for International Crimes
Under the treaty, the ICC can take jurisdiction over a national of even a non-party state if he or she commits a crime in a state party’s territory. The U.S. vehemently objects to this. But it’s nothing new. Under well-established principles of international law, the core crimes prosecuted in the ICC – genocide, war crimes, crimes against humanity, and the crime of aggression – are crimes of universal jurisdiction.
That means that an alleged perpetrator can – and always could – be arrested anywhere. Indeed, the United States itself has asserted jurisdiction over foreign nationals in anti-terrorism, anti-narcotic trafficking, torture and war crimes cases. Even Resolution 1422 notes that states not party to the ICC statute "will continue to fulfill their responsibilities in their national jurisdiction in relation to international crimes."
However, the U.S. has not fulfilled its responsibilities to seek justice for international crimes. It has refused to extradite four terrorists – right-wing Cuban exiles trained by the CIA – who were convicted more than 20 years ago in Venezuela for blowing up a Cuban airliner in 1976. The U.S. similarly refuses to extradite John Hull, an American CIA operative indicted in Costa Rica for the 1984 bombing of a press conference which killed five journalists in a Nicaraguan border town. It has also refused to extradite former military officer Emmanuel Constant for trial in Haiti. Constant, who worked closely with the CIA, is believed to be responsible for the murder of more than 5000 people under the Haitian dictatorship in the early 1990s.
The ICC statute adds a special safeguard to the venerable principle of universal jurisdiction. It promises the ICC will only prosecute when the alleged perpetrator’s native country cannot, or will not, prosecute one of its nationals. The U.S. should not then fear ICC prosecution, especially in light of the Article 98 agreements it coerced – and continues to coerce – from a multitude of countries. Unfortunately, however, these agreements contain no guarantee that an American national accused of an international crime would be tried if handed over to the U.S.
In June, Belgium indicted Bush, Tony Blair, Paul Wolfowitz, John Ashcroft, and Condoleezza Rice for war crimes during the U.S.-led military campaign in Afghanistan, which predated the effective date of the ICC. The indictment was issued under Belgium’s universal jurisdiction law, which gave Belgian courts the right to judge anyone accused of war crimes, crimes against humanity or genocide, regardless of where the crimes were committed. Four Rwandans have been convicted in 2001 under Belgium’s law for their participation in the 1994 genocide which left more than one million dead.
The government of Belgium, fearing a backlash, decided to refer the cases against Blair, Bush and the others to London and Washington, making trials unlikely. Even so, Donald Rumsfeld threatened to move NATO out of Brussels unless Belgium changed its universal jurisdiction law. Belgium capitulated, and its Court of Cassation has asked for the dismissal of the war crimes indictments.
Belgium isn’t alone in indicting Bush and Blair for war crimes. In July, Greece’s Athens Bar Association filed a complaint in the ICC against the two for crimes against humanity and war crimes, this time in connection with their war on Iraq. "Operation Iraqi Freedom" began after July 2002, the effective date of the ICC.
The Sept. 11, 2001 terrorist attacks occurred before the ICC went into effect. Two years later, a Spanish judge charged Osama bin Laden and nine alleged Al Qaeda members with terrorism and murder under the principle of universal jurisdiction.
Luis Moreno-Ocampo, the Argentine Chief Prosecutor of the ICC, has decided to begin the work of the Court by investigating possible genocide, war crimes, and crimes against humanity for the recruitment and use of children as soldiers and sex slaves in the Democratic Republic of Congo. Moreno-Ocampo’s selection of the Congo for his maiden investigation was made partly with an eye to the credibility of the ICC because, he says, "the Congo was a clear case."
But, John Shattuck, the former U.S. Assistant Secretary of State for Democracy, Human Rights and Labor, wrote in the Washington Post in September that the United States has "so far played a passive and sometimes negative role in the region." Just two days after the Security Council adopted a resolution on July 28 which imposed an embargo on "the direct or indirect supply" of arms or assistance to "armed groups and militias operating in the territory," the U.S. lifted its own embargo on weapons sales to Rwanda, which has armed its clients in eastern Congo.
Moreno-Ocampo, who has described the genocide in Congo as the "most important case since the Second World War," plans to investigate businesses in 29 countries, including the United States, suspected of financing ethnic violence in Congo.
Ironically the Chief Prosecutor, an attorney with extensive experience investigating atrocities and prosecuting officials in Argentina, says that the United States’ refusal to work with the ICC will undermine the International Criminal Court’s role in the U.S. efforts to fight terrorism.
Marjorie Cohn, a professor of law at Thomas Jefferson School of Law in San Diego, is executive vice president of the National Lawyers Guild.© Copyright Marjorie Cohn, 2003 For fair use only/ pour usage équitable seulement .