FOR years America’s allies have courted and cajoled the United States into accepting the idea of a permanent international criminal court (ICC) to try those accused of the world’s worst crimes—large-scale war crimes, genocide and crimes against humanity. At best, they hoped, America would come to see it as an important tool in deterring the likes of Saddam Hussein, and of extending and strengthening the rule of law everywhere. At worst, they also hoped, America might reluctantly tolerate the court, adopting a wait-and-see attitude as it tried to establish its credibility. This week that strategy looks in tatters.

Far from acquiescing, the Bush administration has launched an all-out effort not just to win an absolute exemption from the court’s jurisdiction for Americans but, in the view of the court’s supporters, to strangle it at birth. On Sunday June 30th, the United States vetoed a six-month extension of the United Nations peacekeeping mission in Bosnia because the rest of the Security Council refused to grant immunity to the court’s jurisdiction to the handful of Americans serving there under UN auspices. The following day, July 1st, the treaty setting up the court went into effect.

The United States subsequently agreed to a European request to a three-day extension of the UN mission’s mandate to allow further negotiations. But a resolution of the stand-off between the US, Britain and France, the Security Council members backing the court, before the extension runs out at midnight on Wednesday July 3rd, cannot be assumed.

There is some confusion about what the immediate consequences would be of a failure to renew the mandate. There are currently 1,500 UN police and 18,000 troops in Bosnia. But there are only 46 Americans involved in this force and, in any case, the task of policing was scheduled to be handed over to the European Union over the next six months. That handover may now have to be accelerated. The 18,000 troops in Bosnia are NATO’s. Some 3,100 of these are Americans. Presumably both could stay even without a renewal of the UN peacekeeping mission, though some countries contributing troops to this force, such as Germany, have only agreed to do so if the NATO mission is supported by the UN. America's ambassador to Bosnia, Clifford Bond, said on Monday that US troops will stay there, but that did not do much to clarify the situation.

Whatever the practical consequences later this week of the American veto, the move marks a stark escalation of the US campaign to hobble the international court. American officials have indicated that they are willing to withdraw Americans from the UN’s 14 other peacekeeping missions as well. These number only about 700. A refusal to pay America’s share of peacekeeping costs, about a quarter of the total, could also follow. The broader implications of such a split within the Security Council is alarming. “The world cannot afford a situation in which the Security Council is deeply divided on such an important issue, which may have implications for all UN peace operations,” declared Kofi Annan, the UN secretary general.

President George Bush has made no secret of the fact that he firmly opposes the court. Some of his administration’s officials have gone further. They loathe the whole idea of the court, and they not only want to protect Americans from its reach, but to strangle it at birth as a threat to American sovereignty, a view strongly backed by the right wing of the Republican Party both inside and outside of Congress. The American government’s primary concern, say its spokesmen, is that, as the world’s superpower, its soldiers and officials are likely to be the subject of “politicised” prosecutions. But American officials have also said that they will refuse to cooperate with the court, in providing intelligence or evidence, even if no Americans are involved in a case. They have issued a barrage of criticisms at the treaty setting up the court. And for years America, even under Bill Clinton, has waged a campaign to dissuade other countries from ratifying the 1998 treaty setting up the court.

That campaign failed abysmally. The 60 ratifications required to set up the court were achieved in April, years before even the most zealous court supporters had hoped. Since then, the number of ratifications has continued to climb, reaching 74 this week. Moreover, many of America’s closest allies—including most NATO members and the entire European Union, Canada and New Zealand—are supporters. A key supporter is Britain, perhaps America’s closest ally.

The court’s supporters maintain that most of America’s fears about the court, and objections to the treaty, have been dealt with. The treaty contains a number of checks on politically motivated prosecutions or irresponsible behaviour by the prosecutor or the judges. Most other American objections have also already been met, they say. There are two reasons for this. First, some of the fears of a rogue court were shared by them—especially by Britain and France, fellow permanent members of the Security Council who also contribute to peacekeeping forces. Second, in an effort to assuage American fears and reconcile it to the idea of the court, its allies have encouraged American officials to be full participants in the negotiations shaping the detailed rules that will govern the court’s operations, despite the fact that it was clear there was little prospect of America ratifying the treaty in the foreseeable future. Under Mr Clinton, American negotiators took up this offer, and played a large role in shaping the court. But the Bush administration put a stop to that by “unsigning” the treaty in May.

The dispute this week in the Security Council is largely symbolic, but no less important for that. Critics of America’s behaviour point out that the prospects that US officials working under a UN mandate will end up before the international criminal court are almost nil. UN soldiers and officials already enjoy immunity from local prosecution. If they commit crimes, they are supposed to be repatriated and tried by their own countries. They would only be subject to the ICC’s jurisdiction if they had committed widespread and systematic war crimes or crimes against civilians—random shootings are too ordinary for the ICC—and if their country refused to prosecute them, or staged a sham trial to exonerate them. It seems unlikely that both conditions could be met in an established and transparent democracy such as the United States without sparking a huge public outcry which would produce a domestic prosecution. Nevertheless, what the American government is at pains to establish is that there are no circumstances, no matter how grievous, in which an American would be subject to ICC jurisdiction.

If the prospect of an ICC prosecution against American soldiers or officials is so remote, why don’t Britain and France back down, and let the United States attach immunity to all future peacekeeping resolutions? The reason they are digging in their heels is that to concede would be tantamount to letting the US, through a threatened veto in the Council, rewrite a treaty ratified by dozens of countries and incorporated into their law (in many cases countries have even changed their own national constitutions to achieve ratification). It might also kill the court before it even begins operating. Most human rights treaties agreed and ratified in the past 50 years have been similarly stillborn, in the sense that they have outlawed atrocities and war crimes in theory, even while these have been committed on a wide scale and gone unpunished. Prosecutions by the ICC will, by necessity, be selective simply because resources will be limited and not all war criminals can be apprehended and prosecuted. But to incorporate into law formal immunities for America and others—keeping in mind only the worst crimes are involved—would, many of the court’s supporters believe, destroy any claim to even-handed justice that the ICC could make.

The stakes are high for both sides. Britain and France do not want to irreparably damage the ICC. And yet neither do they want to see America withdraw from UN peacekeeping operations, existing or future. European countries do not have the military capability, or the inclination, to fill the gap. Nor do they want barriers to future collaboration with the US even outside the UN umbrella to be imperilled. On the other hand, the US has the same interests, especially at a time when it claims to be leading an international coalition against global terrorism. However much the United States may loathe the ICC, but the cost of trying to stop it is proving costly, in international goodwill as well as credibility. Opposing America’s repeated demands for ICC immunity in Sunday’s vote in the Security Council were all 14 of the council’s other members (Bulgaria abstained in the vote, but had put forward the resolution). On the other side were even Russia and China, who have not ratified the ICC treaty themselves.

From SteveDen Beste @ USS Clueless - this is GREAT!!!

There are some issues on which there can be no compromise. An honest government will recognize them and dig in its heels when they are brought up, and will quite properly ignore international pressure about them.

The United States cannot and will not compromise on the International Criminal Court. Commentary from various European governmental representatives and blathering heads are, for the most part, talking around the reason why. Either it's because they're disingenuous or because they truly don't understand us and our system. For instance, the BBC comments:

To its European and other critics, United States opposition to the Court seems to be based on a fundamental unwillingness to limit American sovereignty in any way.

That makes it sound like we're petulant children unwilling to compromise because we're stupid, ignorant and stubborn. (Where have we heard that before.) Sorry, but it's much deeper than that.

We keep running into this. Again and again, in international treaty negotiations, the Europeans would come up with some grand idea for a treaty clause which had the slight flaw that it violated the US Constitution. They'd then apply pressure to the US to agree to such clauses, and US negotiators would refuse, and the US would get denounced for being stubborn, unilateralist, not a team player. Never mind that stupid Bill of Rights; it's just a piece of paper. National charters are a thing of the past, obsolescent; we're moving past that into postmodern internationalism and trying to form a world confederation, and the only way we can do it is if every country gives up its own sovereignty and becomes part of that process. Now, are you going to play along, or what?

And the answer is, invariably, "or what". No, we're not going to play along. For instance, there was a treaty on biological weapons and part of the enforcement provisions for it would have granted international monitors the right to go anywhere they wanted, to search anything they wanted, any time they wanted, without producing any kind of probable cause or getting any kind of search warrant. The principle is understandable, but it runs right smacko up against the 4th Amendment prohibitions against "unreasonable searches and seizures". The US Government itself doesn't have the ability to look anywhere it wants anytime it wants, and it isn't capable of granting that right to international monitors, either.

There was also a treaty being negotiated about the Internet. One of the provisions of it would have forced every nation to honor online content limitations of other nations, and to enforce their laws. This is basically the Yahoo-France problem: Yahoo had material on its web site in the US which could be accessed from France and which was illegal under French law. A court there tried to issue an order to Yahoo in the US forcing the material to be taken offline. Under this treaty, such a court order would have been binding. It also would have violated First Amendment provisions on free expression, and would have permitted any signatory government anywhere in the world to impose any controls it liked over everything posted online by any American on servers located in the US, as long as that other government could demonstrate that the content could be accessed through the net by its own citizens in violation of its own laws.

The US negotiators made very clear: they could not agree to such a provision because of the Bill of Rights. The US refused to ratify the agreement (it wasn't even signed or proposed to the Senate), and there were yet more accusations against the US of not playing along, of unilateralism, of being self centered, of preventing progress, and on and on. It's like a broken record.

Let's see: there was also an attempt at an arm's control treaty which would have violated the Second Amendment's prohibition against infringement of our right to keep and bear arms. (That one's a favorite whipping boy of foreigners.) And there's the International Criminal Court, which violates Article III, Section 2 of the Constitution.

This keeps happening. The problem is that in Europe their Constitutions are all relatively recent (if they have Constitutions at all) and they are set up in such a way that they can be changed rather easily. Usually all that's required is a legislative measure which may require some sort of super-majority. They do not understand what the US Constitution means to us; they think that we can just ignore it or modify it as necessary, and that we should do so in order to be team players.

What we're running up against here is extremely deep philosophical differences about government itself. The entire American system is based on the assumption that governments can't be trusted, and that unchecked power will eventually be abused. Our entire system is based on the principle of having checks in place to prevent that from happening. Everything in our government is accountable to the people, either directly or indirectly. And no single power in the government is ever unchecked; everything has limits.

"Checks and balances" isn't just a phrase; it's the basic philosophy behind our entire political system. Those limits on governmental power are spelled out in our Constitution, and its primary job is to limit what government can do. Power ultimately vests in the people of the United States, and we grant to our government only such powers as we think it absolutely needs in order to do the job we want it to do. Everything beyond that we keep for ourselves.

That applies to our courts, just as much as to everything else. All state judges must stand for election on a regular basis, even state Supreme Court judges. If they abuse their power or if they are incompetent, they will not be reelected. Federal judges do not stand for election and they hold their positions for life, but they must be nominated by the President and must be approved by the Senate, and if necessary they can be removed from office by impeachment by the House and trial before the Senate (which has happened many times).

And the Second Amendment provides the ultimate check on government by guaranteeing that the citizens of the United States will always have the means available to implement violent revolution if the government goes completely out of control.

This fundamental distrust of government is not a passing fad. It's not Bush cowboyism. This goes back to the founders and it has been a fundamental part of American politics for the entire life of the Union. And we're not going to give it up now, just to play along.

And if we distrust our own government, we damned well distrust international agencies even more. At least with our own government checks are in place, but with all these international institutions, we citizens of the US would have to grant power to them over us without any commensurate responsibility by them to us, or ability by us to change them if they overstep their bounds.

The one argument that Americans will never accept with respect to any governing body anywhere is to give it power, and trust that it won't be misused. All power will eventually be misused; it's only a matter of time. The reason we remain free is because in our system such grants of power are never unconditional or irrevocable.

The United States will never grant sovereignty to any external court which does not answer directly to the people of the United States. The government of the US cannot sign any treaty which creates such a court, and it cannot accept jurisdiction by any such court. This is based on the most fundamental principles we hold sacred about our nation and the relationship between its citizens and its government. We will never give this up.

Never.

The Europeans counter that such worries are silly. The ICC won't actually be used to persecute American soldiers or politicians; provisions are already in place to protect against that. Besides which, the elder statesmen who will be involved in it will make sure of that. Trust them; it will be OK.

The actual principle to which they refer is more or less summarized thusly:

The International Criminal Court will prosecute those responsible for genocide, crimes against humanity, and war crimes, but it will step in only when countries are unwilling or unable to dispense justice themselves.

See? No problem. As long as the US keeps its own house clean, the ICC won't step in.

No, not exactly. The key word in there which is causing the problem is "unwilling". What the government of the US has been claiming is that enemies of the US will use the ICC to try to persecute American soldiers or politicians frivolously as a way of getting revenge. Given that we're the top dog, the strongest nation, the one a lot of people resent, there are bound to be such cases.

So suppose that one of our enemies claims that something done by the US which we consider a legitimate act of war is rather a "war crime". The US looks at the claim and decides that it's ridiculous, and refuses to even consider investigation.

Bang! The US is "unwilling" to investigate or prosecute, and now the ICC has jurisdiction. It can, in principle, order arrests, confine those who are captured, try them and sentence them (in actuality or in absentia) all without any consent or control by the US.

"Trust us. We'll make sure it doesn't happen. You don't need to worry; the prosecutors at the ICC will make sure that such cases are ignored." Sorry, the whole point is that we don't ever trust governmental agencies. We insist that there be checks on any such function and that they be directly answerable to us, and this court would not be.

Anyway, the record so far doesn't lend much comfort. The case that makes clear our misgivings is where the Belgian government got too big for its britches and decided that it would pass a law granting Belgian courts the right to try any human rights case anywhere. Guess who was almost the first one indicted under that law: Ariel Sharon. The case was brought by his enemies among the Arabs. After years of litigation and a decision by an EU body that the Belgians didn't actually have the right to pass such a law, the court eventually backed down. But during that entire time, in principle if Sharon had visited Belgium, the court there could have ordered him arrested under the indictment.

The European attitude about the ICC is to assume it will run smoothly until proved otherwise. The fundamental American attitude toward all governmental power is to assume that it will eventually be abused unless explicit checks are in place to guarantee otherwise.

And the checks which are in place are not adequate. For instance:

Cases can be referred by states that have ratified the Rome Treaty, the U.N. Security Council or the tribunal's prosecutor after approval from three judges.
The Security Council also has the power to suspend an ICC investigation or prosecution if it believes it could obstruct its efforts to maintain international peace and security.

Yes, the US is a veto power in the Security Council. But if an American were wrongly indicted by the ICC and the US wanted to use the Security Council to prevent a trial, it would have to get a resolution passed by the SC. The US could not use its veto to prevent the trial, but any of the other veto powers could use theirs to force the trial to continue.

That's the fundamental philosophical problem here. There's also a serious constitutional issue involved: the US cannot ratify this treaty unless it passes a Constitutional Amendment. Congress does not have the power to override the supremacy of the US Supreme Court, not by law and not by treaty.

The European response to that ("Just ignore it") doesn't fly. Our government doesn't work that way. And we're not going to change it just to make foreigners happy. Again, the BBC comments:

To its European and other critics, United States opposition to the Court seems to be based on a fundamental unwillingness to limit American sovereignty in any way.

It's more than that: the government of the US doesn't have the power to do so. That's one of those things that we citizens didn't give it permission to do. This is not just a small issue for us; it's the most important thing there is. We govern ourselves; we do not grant governing power to the world or any part of it.

Will the US actually shut down all international peacekeeping because of this? Bet on it. An unnamed "Western diplomat" in Sarajevo is quoted by the AP as saying:

But everything is possible with the U.S. administration. They don't give a crap about peacekeeping.

Not correct. We care a great deal about peacekeeping. But we care a lot more about this fundamental issue. Our rights and our sovereignty (and by that I mean "we" as the citizens of the US, not as our government) are the most important things we own. Nothing is more important.

Nothing.

And here's from Neal Boortz:

WE NEED TO REALLY THANK GEORGE BUSH FOR THIS EFFORT

Another anniversary to be celebrated in the future for July 1^st. This day marked the beginning for the International Criminal Court. This UN sponsored court is described as a court to “prosecute war crimes, genocide and other crimes against humanity.”

Clinton loved this thing. He signed the treaty. Signing the treaty wasn’t enough to subject the United States to the jurisdiction of this court – Senate ratification was still needed. But Clinton’s signature gave the ICC legitimacy. President Bush undid that damage – or part of it – by removing the US signature from this hideous document.

Now Bush is going even further. He is stating that it is the position of the United States that neither our private citizens, our military nor our elected officials are subject to the jurisdiction of the International Criminal Court. He’s even going further than that! He has instructed our delegation to the United Nations to veto the extension of any UN peacekeeping missions. Yesterday the US vetoed the extension of the Bosnia peacekeeping mission. Bush’s position is that the US will not participate in any further UN peacekeeping missions unless and until American troops participating in those missions are officially recognized as being exempt from any actions which may be brought before the ICC.

It’s very simple. President Bush is putting the interests of American citizens and our men and women in uniform – and American soverignity – above the sting of world opinion.

Here’s an example. Have you ever heard of the United Nations Genocide Treaty? The full name is Convention on the Prevention and Punishment of the Crime of Genocide. It was adopted by the UN in 1948. Now I have provided a link here to the Genocide Treaty so that you will know that I am not trying to put one over on you. Go read for yourself: http://www.unhchr.ch/html/menu3/b/p_genoci.htm

Now everyone would probably agree that Genocide is a crime, right? Genocide is almost certainly a violation of human rights, right? We would all expect that crimes of Genocide would be tried before this nifty new World Criminal Court … right?

Look at the treaty. I want you to pay particular attention to Article 2, which defines the crime of genocide, and Article 4, which tells you who may be punished for the crime of genocide. For those of you who are reading a printed version of Nealz Nuze, I’ll print those two sections here …. Since it’s somewhat difficult to click on a link from a printed page.

Article 2

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Article 4

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Now .. in this wonderful world of political correctness which we inhabit today, can you imagine all of the acts that might be considered to be an act of genocide? Let’s consider a few examples. Remember, the United Nations is NOT our friend. UN operatives and certain member nations would absolutely LOVE to be able to drag American elected officials, military personnel and private citizens before this World Kangaroo Court to answer charges of genocide.

Example A. An American B-52 accidentally drops a 2000 pound bomb on an Afghan wedding party, killing about 40 people. A leftist anti-American “human rights” group says that the bombing was an attempt to “destroy part of a national group.” They want the B-52 pilots tried before the World Court

Example B. A nationally syndicated radio talk show host sings a song “Allah loves the little children” on the radio and prints it on his web page. A “human rights” group says that the singing of this song by this individual (see Article 4) was intended to and did indeed cause severe mental harm (See Article 2(b)) to certain devout Muslims. They want the talk show host tried before the World Court for the crime of genocide.

Enough. I’ve delivered the knockout punch. End of argument. Even you leftist, hate-America bedwetters out there know that I’ve nailed this one. The Genocide Treaty is just one of hundreds of international treaties that could be used to drage hated, evil Americans, politicians and soldiers before this UN sponsored court.

Why are so many people upset with Bush’s position on this? Easy! Because this ICC could be the one instrument that could bring the United States down to size … knock us off high-horse, so to speak. This was the way to teach those haughty Americans a lesson!

Thank you, President Bush, for fighting this monstrosity. Let’s pause and give thanks that Al Gore or some other Democrat is not running the show on this one.

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