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Scoffing the Rule of Law
by Ken Sanders
March 17, 2005

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President 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 Iran.

Why, then, has the Bush administration withdrawn from a protocol proposed by the U.S. and used to protect U.S. citizens?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This is not the first time the U.S., following an adverse ruling, has withdrawn from the jurisdiction of the ICJ.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 statute notwithstanding.

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 analysis.

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 and prosecution.

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.

Ken Sanders is an attorney based in Tucson, Arizona. Visit his weblog at:  He can be reached at:

Other Articles by Ken Sanders

* Putting the "Mock" in Democracy
* Torture’s Our Business ... and Business is Good
* Remember Afghanistan?
* The United States’ Hypocritical Nuclear Policy
The “Other” Iraqi Conflict
* Cause for Alarm: Regime Change Redux
* Still Playing Cute With the Law
* The Boogeyman and Social Security