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How U.S. opposition to international court jeopardizes U.S. troops

By Marjorie Cohn
FindLaw Columnist
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(FindLaw) -- Even after the recent, tragic attack on the U.N. headquarters in Baghdad, the United States was not willing to unreservedly support a U.N. Security Council resolution to help protect U.N. and other humanitarian workers. Instead, the U.S. greenlighted the resolution only when its reference to the International Criminal Court (ICC) was deleted.

It's not the first time that the United States has put its opposition to the ICC before other important goals: Last year, in an unprecedented move, Bush withdrew the United States as a signatory to the ICC's statute, which has been ratified by all other Western democracies. But it ought to be the last.

The U.S. government's hypocritical opposition to the ICC

The U.S. government frequently blasts other countries for human rights violations. It also frequently supports -- or even, in the case of Iraq, seeks to initiate -- war crimes prosecutions against other country's leaders. But, at the same time, it refuses to acknowledge that what's good for the goose, is good for the gander.


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Washington seeks to immunize U.S. leaders from war crimes prosecutions entirely, no matter what they may do. That is doubtless the reason Bush felt compelled both to refuse to become a party to the treaty and also recently to withdraw the U.S. signature from the ICC statute.

And indeed, the Bush Administration has gone even further: It has demanded express immunity from ICC prosecution for American nationals. This demand delayed the passage of several peacekeeping resolutions in the Security Council -- and in the end, the Security Council had to capitulate.

Thus, in 2002, it unanimously passed Resolution 1422 -- calling for one year of immunity for peacekeepers from countries not party to the ICC statute, and providing that that immunity could be renewed in subsequent years. The resolution was renewed in June. But France, Germany and Syria abstained.

Meanwhile, the United States has reportedly extracted separate bilateral immunity agreements from 60 nations -- primarily, they are either small countries, or fragile democracies with weak economies.

And if a country refuses to enter into such an agreement, the United States will often withdraw military assistance. Pursuant to the American Servicemembers Protection Act, it has done so with respect to a staggering 35 countries. As with the U.N. and other peacekeepers, the United States has put lives in danger by insisting on opposing the ICC treaty in every way possible.

The ICC's provisions are long-established and unobjectionable

Why is the United States so upset about the ICC statute? The answer is this: Under the statute, the ICC can take jurisdiction over a national of even a non-party country if he or she commits a crime in a party country's territory.

The U.S. vehemently objects to this. But in fact, it's nothing new. Under well-established principles of international law, the crimes prosecuted in the ICC -- genocide, war crimes, crimes against humanity and the crime of aggression -- are crimes of universal jurisdiction.

That means that an alleged perpetrator can -- and always could -- be arrested anywhere. Indeed, the United States itself has asserted jurisdiction over foreign nationals in anti-terrorism, anti-narcotic trafficking, torture and war crimes cases.

In addition, the ICC statute adds a special safeguard to the venerated principle of universal jurisdiction. It promises that the ICC will only prosecute when the alleged perpetrator's native country cannot, or will not, prosecute one of its nationals.

Thus, for instance, the U.S.'s decision to prosecute Lieutenant William Calley in connection with the My Lai massacre would -- had the ICC statute been in force then -- have ensured that the ICC would not itself have put Calley on trial.

The Bush administration may fear prosecutions for the crime of aggression

In the end, though, it's not the rogue Lieutenant Calleys the Bush administration is worried about -- it's military personnel conducting what the administration views as business is usual. For there is an argument that high-level military personnel who were in charge of the Iraq war committed the "crime of aggression" -- which is punishable by the ICC.

So far, the crime of aggression, in this context, remains undefined. When the U.S. participated in the ICC Preparatory Commission (PrepCom) meetings, it consistently resisted broad definitions and broad jurisdiction. And the drafters of the ICC statute, unable to agree on a definition and process for prosecuting aggression, left that struggle to a later day.

How, then, would the ICC's reference to a "crime of aggression" likely be interpreted? Unfortunately for the Bush administration, it would probably be in a way that would encompass the Iraq war.

Many of the countries at the PrepCom meetings favored the definition of aggression embodied in General Assembly Resolution 3314, passed in 1974 in the wake of the Vietnam War. It defines "aggression" as "the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition."

Plainly, invasions that are neither sanctioned by the Security Council, nor undertaken in immediate self-defense (as the U.N. Charter allows), would count as "aggression." And the Iraq war was just such an invasion.

The situation couldn't be clearer: Despite its vast power, the United States feels trapped. Because its invasion of Iraq violated the U.N. Charter and defied the Security Council, it opened itself to a potential war crimes prosecution. Now, to avoid such a prosecution, it is forced to lose allies or potential allies -- such as the 35 countries it abandoned and alienated -- and to delay or impede important goals such as protecting peacekeepers.

Meanwhile, the U.S.'s own soldiers are in danger, dying every day in Iraq, and the U.S.'s past decision to flout the U.N., and invade in the first place, is doubtless harming its ability to protect even its own. It needs U.N. help for political cover, even though it threatened the U.N. with "irrelevance" before the war.

The United States should apologize for its misguided Iraq war, end its occupation, allow the U.N. to take over with a multilateral peacekeeping force, and lend its wholehearted support to the ICC in the future. If it does not, it will only find itself repeatedly hamstrung by its own lawbreaking.

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Marjorie Cohn, a FindLaw columnist, is a Professor of Law at Thomas Jefferson School of Law in San Diego, a criminal defense attorney, executive vice president of the National Lawyers Guild, co-chair of the Guild's international committee and editor of Guild Practitioner. Professor Cohn co-authored "Cameras in the Courtroom: Television and the Pursuit of Justice," and she publishes frequent articles and does media commentary about U.S. foreign policy, human rights and criminal justice.

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