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Opposition to court leaves U.S. behind, on wrong side of history


On July 1, the world’s first International Criminal Court will come into existence. The court is expected to be operating by mid-2003.

History may well record that America’s absence from this court is one of the great tragedies of modern times. The boycott of the International Criminal Court by the United States could, like America’s rejection of the League of Nations after World War I, lead to the crippling of the court.

But the need and the desire for a permanent Nuremberg are so great and so intense that the opposition of the United States may become unimportant. For the first time in the history of the world there will be a tribunal that will try the perpetrators of crimes when national systems do not work.

The dream of a permanent international independent tribunal for egregious crimes prompted the United States to create the Nuremberg tribunal after World War II. It is primarily the fault of the United States that Nuremberg did not develop into a permanent tribunal. If it had, the history of the world in the last 50 years might well have been different.

Several years ago, the American Bar Association developed a task force for the International Criminal Court. I served on that body and participated in its interventions at the Rome conference in June and July 1998. The delegations from the 160 nations present were deferential to the several objections of the United States. But even the concessions obtained by the Pentagon did not persuade the United States to sign. The International Criminal Court implementation was approved in Rome by 117 countries, including the Holy See. Only seven voted in opposition -- the United States, China, Libya, Iraq, Israel, Qatar and Yemen. Israel later changed its mind and voted in the affirmative.

On his last day in office President Clinton signed the Rome statute that implements the International Criminal Court treaty. He made the United States the 138th country to sign it. It is expected that the vast majority of nations will ratify the treaty in the next several months.

The Bush administration said on May 6 that it was renouncing U.S. support for the court. The core of America’s objection is the fear that hostile nations around the world could attempt to try American servicemen in their countries on false allegations. But this is a total misunderstanding of the treaty, since the document provides explicitly and unmistakably that the court has no jurisdiction over any person if the country of origin agrees to take appropriate remedies for the alleged wrongdoing.

Opponents of the treaty claim that the court dilutes some guarantees such as trial by jury or protection against double jeopardy. But the underlying opposition to the court comes from individuals who basically do not want any non-American entity to have a say as to how the United States conducts its affairs. It should be noted that the fears expressed can be provided for by reservations to the treaty when it is ratified by the U.S. Senate.

The Bush White House has expressed the strongest opposition to the International Criminal Court. Neither the Pentagon nor the Bush administration pays any attention to the fact that a world tribunal to ferret out and punish the most heinous crimes of nations has been on the United Nations’ agenda for 50 years. The massacres in Cambodia, Rwanda and the Balkans finally brought the dream to fruition.

Opposition to the International Criminal Court was set back in Congress when a measure called the American Service Men’s Protection Act was defeated. This bizarre measure would have allowed the president of the United States to invade The Hague to release U.S. citizens and allies from the custody of the court.

The Holy See has not yet ratified the International Criminal Court. Its difficulties have not been made clear. Clearly the court is consistent with the long tradition in Catholic thinking that international society should provide for the apprehension and confinement of those reckless criminals whose governments will not punish them.

The entire nongovernmental coalition of human rights organizations continues to form a solid phalanx in support of the International Criminal Court. There were 236 nongovernmental organizations at the Rome conference. These groups will monitor the forthcoming appointment of judges and prosecutors and will continuously pressure the United States into ratifying the court. That will not be easy. The widespread, and possibly increasing, hostility to the United States around the world will make every American politician apprehensive about exposing Americans abroad to the possibility of being arrested by a foreign power.

Most Americans would probably welcome a national debate on the International Criminal Court. Even the best informed have little knowledge of the 128 articles in the court’s charter. They have even less understanding why the Pentagon and some conservatives have such a fear of the court.

In 1948 the United States adopted the four Geneva accords on war and used them in its prosecution of Lt. William Calley, for his conduct in the war in Vietnam. The manuals given to every person in military service in the United States recount in detail all of the restrictions placed by international law on the conduct of those engaged in war.

Why therefore is the United States so opposed to an international tribunal that would punish such conduct when the country from which a soldier comes refuses to do so? The answer, I believe, lies in the psyche of Americans who deep down are not able or willing to say that their country did something wrong.

On July 1, the world leaves the United States on the wrong side of history. The refusal of the United States to ratify the court treaty may ironically make U.S. military personnel abroad more vulnerable to accusations of conduct forbidden by the international law of war.

Finally, the opposition of the United States to the court raises questions about its sincerity in seeking to deter terrorism. The court has as one of its major purposes the apprehension and trial of terrorists whose country of origin will not bring them to justice.

Jesuit Fr. Robert Drinan is a professor at Georgetown University Law Center. His e-mail address is drinan@law.georgetown.edu

National Catholic Reporter, May 17, 2002