Bush, like his predecessors, likes to pontificate on the rule of law and
celebrate America's deep respect therefore. Along similar lines, the U.S.
rarely misses an opportunity to condemn “rogue” nations who flout
international law and their treaty obligations. In fact, Bush & Co.
condemned Iraq on that basis and continue to do so regarding Iran and North
Korea, to name but a few.
Nonetheless, and despite all of the lofty rhetoric about respecting the rule
of law, last week the United States “withdrew” from the jurisdiction of the
International Court of Justice over certain diplomatic disputes.
Specifically, the protocol from which the U.S. withdrew empowered the ICJ to
hear cases brought on behalf of people detained in foreign countries who
have been denied access to their country's consular officials.
The Optional Protocol of the Vienna Convention on Consular Relations was
proposed by the U.S. in 1963 and ratified in 1969. The U.S. was the first
nation to invoke the Optional Protocol to protect its citizens abroad
following the taking of 52 American hostages in Iran in 1979. In that
instance, the ICJ ruled in favor of the U.S., issuing a judgment against
Why, then, has the Bush administration withdrawn from a protocol proposed by
the U.S. and used to protect U.S. citizens? Simple. The ICJ had the
unmitigated gall to rule against the U.S. last year when it ordered new
hearings for 51 Mexican nationals on death row in the U.S. who had been
denied access to Mexican consular officials.
Pouting like a chastised child, the U.S. has decided it no longer wants to
play with the ICJ.
This is not the first time the U.S., following an adverse ruling, has
withdrawn from the jurisdiction of the ICJ. In 1986, the ICJ ruled against
the U.S. in a suit brought by Nicaragua regarding U.S. mining of Nicaragua's
harbors. Dissatisfied with the court's ruling, the U.S. simply ceased to
acknowledge the ICJ's general jurisdiction.
What does it say about U.S. respect for the rule of law when, displeased
with the adverse ruling of an international tribunal, the U.S. decides it is
not subject to that tribunal's jurisdiction? How extreme is the arrogance of
U.S. hypocrisy that it can withdraw from tribunals it does not like yet
demand that other nations honor their obligations under international law?
The arrogance and hypocrisy are mind-boggling.
U.S. contempt for international law in general and international tribunals
in particular is not limited to the ICJ. The U.S. is also vehemently and
irrationally opposed to the International Criminal Court. Established in
2002 in response to the atrocities in Rwanda and the former Yugoslavia, the
ICC has jurisdiction to try individuals for genocide, war crimes, and crimes
against humanity. Not only is the ICC restricted to hearing atrocity crimes,
it may adjudicate only those considered planned, systematic, or to have
occurred on a large scale. It may not prosecute states, only individuals and
only if a state with jurisdiction is unable or unwilling to act. Thus, the
ICC is truly a court of last resort designed to ensure that, if all else
fails, those most responsible for committing history's most heinous crimes
will be held accountable.
Nonetheless, despite the laudable goals of the ICC, the U.S. has done
everything in its power to undermine and even destroy the court. While the
Clinton administration contributed to the creation of the ICC by pressing
for the inclusion of crimes committed during civil conflicts, as well as
codifying the elements of atrocity crimes, that administration, like the
Bush administration, never supported U.S. ratification of the ICC's enacting
statute. Indeed, aligning itself with such champions of human rights as
Israel, China, Libya, Iraq, Qatar, and Yemen, the United States was one of
only seven nations to actually vote against the enacting statute. It was
only after the ICC treaty entered into force in 2002 (following ratification
by the requisite 60 nations) that the U.S. signed, but still refused to
ratify, the treaty.
Picking up where Clinton left off, the Bush administration and Congress
continued the U.S. animosity toward the ICC. In 2002, Congress enacted the
American Servicemembers’ Protection Act, codifying U.S. hostility toward the
ICC. Under the Act, no U.S. law enforcement agency may cooperate with the
ICC, U.S. participation in U.N. peacekeeping operations is conditioned upon
exception of the U.S. military from the ICC, U.S. military assistance to
parties to the ICC is prohibited, and U.S. financial support of the ICC is
also prohibited. That same year, the U.S. formally advised the U.N. that the
U.S. would never become a party to the ICC, its signature of the enacting
Why the about-face by the Clinton administration and the ongoing U.S.
hostility toward the ICC? Simple. The U.S. failed in its efforts to ensure
that Americans were specifically exempted from the ICC's jurisdiction.
According to the U.S., members of the armed services should not be subject
to prosecution by the ICC while protecting "the vital national interests of
the United States." In layman's terms, the U.S. wants to be able to protect
its vital national interests without being fettered by prohibitions against
genocide or crimes against humanity.
Officially, of course, the U.S. would never be so candid. Instead, it claims
the ICC interferes with U.S. sovereignty, would result in politically
motivated prosecutions against U.S. citizens, lacks accountability, and
applies vague legal standards. None of these concerns withstand even cursory
Regarding sovereignty, the ICC does not have universal or global
jurisdiction. As with any court in the United States, the ICC only has
jurisdiction over crimes committed by a citizen of a state party to the ICC
or which occur within a state party's territory. For example, it has always
been that if an American commits an atrocity in and is arrested in, say, the
U.K., he may be tried in the U.K. under U.K. law. With the creation of the
ICC, instead of prosecuting the American itself, the U.K., as a ratifying
party, may defer to an ICC investigation. In either case, the American is
prosecuted in a foreign court. Moreover, if an American commits an atrocity
in the U.K. but is arrested in the U.S., the ICC must defer to an
investigation and prosecution undertaken by a U.S. court. In short, concerns
about the ICC's interference with U.S. sovereignty are baseless.
As for the specter of politically motivated prosecutions, such a criticism
ignores the limited types of crimes subject to ICC jurisdiction. The ICC
only has jurisdiction over individuals who orchestrate atrocities, like
Hitler, Stalin, or Pol Pot. Thus, the average U.S. servicemember would not
be within the reach of the ICC. In fact, the ICC recently refused to
investigate allegations about the behavior of U.S. forces in Iraq.
Additionally, the nations that have ratified the ICC are primarily allies of
the U.S. These nations monitor and control the ICC and would be extremely
unlikely to permit abusive prosecutions of Americans. Finally, before an ICC
prosecutor can even investigate allegations, he must get the approval of two
out of three ICC judges, none of whom may be from the same party state.
While a prosecutor may have a political motivation, it defies probability
that two of three judges would permit a politically motivated investigation
These checks upon ICC prosecutions are part of the accountability safeguards
integrated into the ICC. If a prosecutor or any other ICC official acts
improperly, he or she may be removed from office. Party states oversee the
hiring and firing of judges and prosecutors and hold the ICC's purse
strings. Furthermore, the state of an accused, as well as the accused
himself, may challenge the jurisdiction of the ICC and the admissibility of
the alleged crime. Finally, the U.N. Security Council may prevent an ICC
investigation or prosecution.
Most incredible are U.S. claims that the laws applied by the ICC are vague.
If the laws are vague, the U.S. has itself to blame since it played a major
role in drafting the war crimes provisions and spearheaded the effort to
define the elements of crimes that may be prosecuted. Moreover, the
jurisprudence of the ICC is based on well-established treaty law that is
accepted by and binding upon the U.S. under the Constitution. What renders
U.S. criticisms about vague legal standards most laughable, however, is the
fact that the U.S. incorporated the same standards into the new Statute of
the Iraqi Special Tribunal. Indeed, the language was taken nearly verbatim
from the ICC statute.
Clearly, the real reason for U.S. hostility toward the ICJ, ICC, and
international law as a whole is rooted solely in ideological opposition to
any constraints upon or interference with U.S. hegemony. The U.S. arrogantly
believes that it, and it alone, is entitled to act how and when it wants
without accountability. In its petulance, the U.S. is willing to allow the
killing and rape in Darfur, Sudan to continue rather than recognize the ICC.
In short, while the government of the U.S. makes eloquent speeches about
respecting the rule of law, its actions amply demonstrate that it just
doesn't give a damn.
is an attorney based in Tucson, Arizona. Visit his weblog at:
www.politicsofdissent.blogspot.com/. He can be reached at:
Other Articles by Ken Sanders
"Mock" in Democracy
Our Business ... and Business is Good
* The United
States’ Hypocritical Nuclear Policy
The “Other” Iraqi Conflict
* Cause for
Alarm: Regime Change Redux
Playing Cute With the Law
Boogeyman and Social Security