Don't Tread on Us!
RABKIN, JEREMY
Don't Tread on Us! How to handle the International Criminal Court. BY JEREMY RABKIN AFTER A YEAR of internal debate, the Bush administration announced a decision last week: The United States...
...We'll meet you in New York...
...In principle, we have no objection to sovereign states exercising criminal jurisdiction in their own territory...
...Majorities in both the House and the Senate have endorsed such measures...
...The treaty is an agreement between the arresting state (or the Dutch state) and other consenting states...
...It's true that Americans get arrested in other countries all the time for crimes committed in those countries...
...As it happens, the non-consenters include the overwhelming majority of U.N...
...The United States has not consented...
...From our pioneering leadership in the creation of tribunals in Nuremberg, the Far East, and the International Criminal Tribunals for the former Yugoslavia and Rwanda, the United States has been in the forefront of promoting international justice...
...They don't have the refined sensibilities of the Germans and the French...
...The United States can stand with Australia, India, Israel, Mexico, Russia, and other self-respecting states...
...What the ICC treaty does is remove the element of state responsibility...
...The administration should spend less time worrying about the moral vanities of Europeans and more time building what Secretary Rumsfeld used to call "coalitions of the willing...
...The administration does not seem to have thought that far ahead...
...That's okay, too...
...But if the United States government thinks the arrest of an American abroad was unfair or abusive, it can, in the normal case, register a strong protest with the arresting state and try, in various ways, to get that state to change its position...
...It is the ICC which is, in the relevant respects, "unilateralist" by imposing new conditions on independent states without their consent...
...Congress has been considering bills to authorize the president to take retaliatory action (including military action) against any country that seizes or holds Americans for trial before the ICC...
...Security Council to act in support of justice" and we "ask those nations who have decided to join the Rome Treaty to meet us there...
...It was never submitted to the Senate and has never had any prospect of ratification...
...Now is not the best time to do this, when the United States is already trying to rally international cooperation for a war on terror...
...But what will the administration actually do now to "defeat the object and purpose" of the Rome treaty...
...This is intolerable and the administration needs to say so very clearly...
...Grossman didn't say...
...If the administration is afraid of appearing "unilateralist," it should be trying to rally non-ratifying states to a common position against the court...
...In the coalition to contain the new Euro-court, there are plenty of "willing" partners...
...So, says Grossman, the "United States will use its position on the U.N...
...Unsigning the treaty does release the United States from its obligation under customary law (as codified in the 1969 Vienna Convention on the Law of Treaties) to "refrain from acts which would defeat the object and purpose" of the treaty...
...It was made public by Marc Grossman, undersecretary of state for political affairs, at a hastily organized presentation, hosted by a think tank in Washington on May 6. It was not exactly big news that the Jeremy Rabkin teaches international law at Cornell University...
...Its right to act in defense of its own citizens can't be waived away by treaty agreements among third parties...
...In the midst of a war on terror, the last thing we want is an international arbiter of "aggression" or "war crimes," handing down moral judgments from his cozy perch in Euroland, where they do no fighting but are only too happy to pass judgment on those who do...
...On the whole, the 70 or so states that have ratified are essentially Euros and their former colonies in Africa, along with a sprinkling of nice little states like New Zealand and Ecuador...
...All non-ratifying states have a common stake in resisting the notion that "international justice" can be imposed on them because European socialists think it would be nice to do so and their client states have signed on to the project...
...member states and a still more overwhelming majority of the world's people (with China, India, Indonesia, Brazil, Mexico, Russia, and other large states among the non-ratifiers...
...The administration ought to be taking the lead in getting some measure of this kind on the books...
...That should have no bearing on the American position...
...Even President Clinton had described the Rome treaty as "flawed" when he signed it in the last weeks of his term...
...The fact that several states do this in collaboration doesn't change the underlying fact that a new authority is being imposed on others without their consent...
...Is that too unilateralist...
...The last time a government disclaimed responsibility for the detention of Americans, it was the new government of Iran in 1979, claiming that it could not control the revolutionary students who held personnel in the U.S...
...But it may not have more than a few months to figure out a response...
...At the same time it has made democratic leaders—those who actually overthrew Milosevic—look weak and incapable, because the tribunal would not even let Serbia's democratic government attempt its own trial of the former dictator, and the trial in The Hague has been incompetently organized...
...BY JEREMY RABKIN AFTER A YEAR of internal debate, the Bush administration announced a decision last week: The United States would no longer consider itself a signatory to the Rome Treaty establishing the International Criminal Court...
...Grossman made no distinction between trials conducted in Germany and Japan after the war, where the United States exercised sovereign powers through its military occupation, and tribunals created by the Security Council in the 1990s to judge perpetrators of crimes in states still regarded as sovereign...
...No wonder there hasn't been much outcry...
...There's a big world out there, beyond Europe...
...The American media yawned...
...To the contrary, he stressed general American sympathy for the aims of the ICC...
...tribunal has generated tremendous frustration by protecting the perpetrators of genocide, very few of whom have actually been punished...
...The tribunal for the Balkans has managed to make Slobodan Milosevic popular again in Serbia...
...It is acting and should be glad if others act to hold terror sponsors accountable...
...The arresting state can claim that it is just following orders from The Hague: "nothing personal...
...United States would not join the ICC...
...The United States wants to hold states accountable for sponsoring terror...
...The world barely reacted...
...Let the Euro-court offer justice to Botswana and Nauru, Mauritius and Mongolia...
...They'll wait for us in Rome or at The Hague...
...The policy decision was not announced by the president or the secretary of state...
...In the State Department view of the world, however, international justice is just fine—as long as it is imposed by the Security Council, where the United States has a veto...
...The fact is that in Rwanda, the U.N...
...The only thing different about arresting or holding Americans for the ICC is that the detaining states—or the hosts for the detention—have signed a treaty saying they will do so...
...America should be part of it...
...Accountability means military action...
...It's just a dispute about the address, it seems...
...The truth is that the war on terror makes it essential to act against the ICC...
...embassy as prisoners for more than a year...
...But the Dutch government will also disclaim any responsibility for holding an American because it is the ICC which is making the decisions...
...What the Bush administration did not say—at least not at all clearly—is what it will do if the ICC does indict Americans and signatory states then follow through with arrests...
...The accused may then be sent to prison facilities in the Netherlands while awaiting trial...
Vol. 7 • May 2002 • No. 35
