Amid global outrage over the abuse by U.S. soldiers
of Iraqi detainees, the Bush administration has asked the United Nations Security
Council to exempt its troops serving in UN-approved peace-keeping operations
from prosecution for war crimes before the new International Criminal Court
(ICC) at The Hague in the Netherlands for another year.
The request, expected to be debated before the Security Council Friday, comes
less than six weeks before the current exemption – which many international-law
experts believe violates the UN Charter – expires. Observers said the move appears
designed to get the issue out of the way now, so that Washington can focus its
diplomatic efforts in the UN on obtaining a new resolution authorizing the transfer
of sovereignty in Iraq from the Coalition Provisional Authority (CPA) to a new
Iraqi government by June 30.
Still, the timing of Washington's move struck some analysts as less than ideal,
given the global attention the ongoing prisoner-abuse scandal has received since
photos depicting the sexual
humiliation and mistreatment of detainees at Abu Ghraib prison in Baghdad were
leaked to the press three weeks ago.
The abuses depicted in the photos, as well as subsequent media accounts, testimony
before the U.S. Congress, and the circulation of reports by human rights groups
and the International Committee of the Red Cross (ICRC), indicate that the U.S.
military may be responsible for war crimes under the Geneva Conventions in both
Iraq and Afghanistan that theoretically could be prosecuted before the ICC.
''Given the recent revelations from Abu Ghraib prison," said Richard Dicker
of Human Rights Watch (HRW), "the U.S. government
has picked a hell of a moment to ask for special treatment on war crimes."
HRW, Amnesty International, as well
as hundreds of other national and international human rights groups that belong
to the International NGO Coalition for the ICC, are urging governments to speak
out against the extension of UN Security Council Resolution 1487, which was
first approved, after the U.S. threatened to veto all UN peacekeeping missions
if it did not get its way, in 2002 and subsequently renewed in 2003.
The resolution prohibits the ICC from investigating or prosecuting any current
or former official or personnel from any country that has not ratified the Rome
Statute (the international treaty that created the ICC) for acts committed by
them during their participation in a mission authorized by the UN.
As one of his last acts as president, Bill Clinton signed the Statute but declined
to send it to the Senate for ratification. In May 2002 the Bush administration
formally renounced Clinton's signature and launched a campaign to persuade as
many countries as possible – about 90 to date, according to the State Department
– to sign bilateral agreements with Washington forbidding them from transferring
any U.S. national in their custody to the ICC.
The United States has also cut off military assistance to about three dozen
countries that so far have refused to sign such an agreement. Ninety-four countries,
including virtually all of Europe and most of the Caribbean, Latin America,
and a substantial number of African states, have ratified the Statute.
ICC supporters have long made the argument that Washington has nothing to fear
from the new tribunal, which formally opened for business 10 months ago and
has since agreed to investigate alleged war crimes in the Democratic Republic
of Congo (DRC) and Uganda.
The treaty is meant to apply primarily to those countries that are either unwilling
or unable to prosecute cases of war crimes, crimes against humanity or genocide
that are committed by individuals under their control. ICC proponents say that
so long as the United States government is willing to investigate and prosecute
such crimes, as it is currently doing in the case of the Abu Ghraib abuses,
the ICC prosecutor would have no grounds for asserting jurisdiction.
"Clearly, the actions of the ICC so far should have put to bed the unreasonable
concerns of this administration," said Heather Hamilton of Citizens for Global
Solutions (CGS). "The Court's actions to date underscore that it is functioning
as intended – looking at only those situations that truly shock the conscience
of humanity and which existing national and international mechanisms have so
far been unable to tackle."
U.S. officials, however, insist that the ICC threatens U.S. sovereignty. They
also argue that, given Washington's military dominance and the unique responsibilities
for maintaining international peace that go with it, U.S. peacekeepers are particularly
vulnerable to politically-inspired prosecutions by the ICC.
When the U.S. demanded that the Security Council exempt its forces from the
ICC's jurisdiction, 120 signatories of the Rome Statute denounced the move,
and 72 member-states, including virtually the entire membership of the European
Union, Mexico, and Canada, took the floor to explain their opposition.
At last year's meeting, UN Secretary-General Kofi Annan also voiced serious
concerns about renewing the resolution. "Allow me to express the hope that this
does not become an annual routine. If it did, I fear the world would interpret
it as meaning that the Council wished to claim absolute and permanent immunity
for people serving in the operations it establishes or authorizes. If that were
to happen, it would undermine not only the authority of the ICC but also the
authority of the Council and the legitimacy of United Nations peacekeeping,"
Three countries – Germany, France, and Syria – abstained on last year's resolution
when it came to a vote, and HRW's Dicker said he expected more would demonstrate
their opposition by abstaining this year.
He added that the recent abuses make it more urgent than ever for Washington
to show that it is willing to abide by international standards.
"The last thing the U.S. needs right now is to further antagonize its friends
and give the impression that it sees itself as above the law," said Maggie Gardner,
CGS' International Law and Justice Program manager. "This resolution has little
real impact other than to make Americans look like bullies."