Thursday, March 31, 2005

Why US is anti-ICC!

Now we know why the US has been and is still against the International Criminal Court (ICC).

Read the authorisations of the US military Commander in Iraq that had led to the Abu Ghraib and other war crimes.

Read how a US army captain killed an unarmed and wounded Iraqi and then claimed it was ‘honourable’.


  1. The US Military Justice system dealt with and convicted that captain. One of the primary reasons the US is not interested in the ICC is the danger of it being politicized.

  2. Thanks. When I wrote that piece, the court case was still ongoing, with the Defence offering that 'honourable' killing plea. If he has been convicted then my article has been overtaken by the process.

    What you have explained as the reason for the US disdain for the ICC is the same as America's official line. But internationally that explanation has not been accepted as a bona fide reason. It is inconceivable that an open and highly transparent court such as the ICC would be so easily politicised. It would be the foolish ICC that seeks to exploit a case in any sinister fashion involving an American merely for political oneupmanship. There are in fact safeguards. In fact, see how difficult it has been, still is to convict a person as Slobodan Milosevic. OTOH, international legal experts as well as US ones have questioned the legitimacy and fairness of the American military courts in the US Administration's intention to trial alleged terrorists.

    The real reasons for US polticians' reluctance number two, which in fact may be further reduced to one.

    US politicans would have a hard time explaining to their constituencies why, say a hypothetical case involving a US Marine Corp bloke, has been found guilty of war crimes in Country X. The reality is most Americans have a very naive understanding of their country's involvement in many parts of the world, chiefly for America's strategic interest.

    My family and an American family in Arizona are very close friends - they hosted my brother-in-law when he was a student in the States for years (that family is now virtually a part of our extended family). They have been to Malaysia to stay with us on months' long vacation. They are middle class Americans, god-fearing GOP card carrying members. We love them. Yet, they have been very naive about what the USA has been doing in some countries, and cannot fathom why some people dislike the USA. Initially I tried explaining to them their government's action but I soon discovered that if I value their friendship, which I do, I best stop before they become further confused and upset.

    Based on the feelings and perceptions of this very good and decent family, the average Americans cannot ever accept that some of their troops (of all ranks) have been real nasty bastards. To most Americans, US troops are Mums' boys, who love apple pie, the girls next door and going to Church on Sundays. I can well imagine the difficulties their Congressmen and Senators would have explaining their 'crimes' to their regional supporters.

    Observe how, with even a simple straightforward case of reckless flying by a Marine Prowler aircraft in northern Italy that led to the manslaughter of innocent skiers when the unauthorised low flying clipped the cable of the skiers' cable car, was 'tidied up' swiftly by the US Administration bundling those culprits back to the States for a whitewash job, while Italians fumed for justice.

    That was just an example of many such incidents involvng US troops, airmen or sailors. Also, remember Lt Calley of the notorious My Lai massacre? About 500 troops were involved, yet they picked one as a sacrificial lamb (not that he didn't deserve it) and only because other US military people and reporters raised the issue - I blogged a piece on Three Good Men on X'mas Eve about the 3 US Army helicopter crew who defied their compatriots to protect some My Lai villagers, so don't be under the impression I am simply anti-Americans. I gave credit where credit has been dued, and I blast when blasting is required.

    So the real reason for US rejection of the legitimacy of the ICC is due to US politicians' fear of electoral backlash from their very naive constituencies - that's what/who American politicians are concerned about, not the politicising of the ICC.

    Geoffrey Robertson, Queen's Counsel, internationally noted human rights activist, and leading participant in a host of international legal and human rights forums and organizations, in his book 'Crimes Against Humanity' said of the US, that the US will never support ICC unless it serves American interest, and the need to recognise that US soldiers must be above the laws of other countries.

  3. The ICC has already been politicized, and for anyone to think that just because it is "international" it will not be is kidding themselves. Look at it's recent action regarding Uganda - it is already being argued that it is being counter-productive. Look at the UN for another example of a good idea gone very, very wrong. Your analogy is nice, but doesn't prove anything nor does quoting Robertson.

    The reasoning really is quite simple. The US has no interest in creating another political tool that is likely to be counter-productive and damaging. As a US Navy Chaplain, I would fall under the ICC's intended jurisdiction if I were to defend myself by killing an attacker in the field. Since as a chaplain I am forbidden from bearing arms (and technically forbidden from being attacked unarmed) my act of self-defense would be construed as a crime. That's simply absurd. The real reason for the US rejecting the ICC is that it isn't necessary for us and we have no interest in a situation like the one Belgium created by claiming that their laws had unlimited jurisdiction.

  4. You analogy equally doesn't prove anything - in fact I would go as far as to say it's irrelevant. Who in his right mind would take a Chaplain defending himself (as opposed to waging attacks on someone) to court on a war crimes charge. The ICC is not made up of just hostile Middle-eastern, Asian, African or south American countries.

    What I have stated is the existing international view on the US stand/attitude. BTW, Geffrey Robertson QC is an Australian who's resident in Britian, two nations that are closest to the USA with common denominations in politics, culture, ethnicity and legal systems - hardly a Koranic wielding mullah.

    As they say, you can't force a 500 kg gorilla to conform - all you can do is try to persuade it to join the community of law-abiding nations. I doubt that will happen under a right wing government like Bush's.

    But the reality of the US refusal to support the ICC lies not in your explanation (for that explanation could easily be employed by Australia, Britian, NZ, Canada and west European countries as well not to join - that goes your argument) but in what I have stated, namely internal political considerations. Look through recent American military history of criminal and civil crimes committed overseas, and recall how many of these had been overlooked, exempted, whitewashed, dismissed, penalised with just a light slap on the wrist, or even obtaining a presidential pardon. Domestic politics, that's why!

  5. From:

    Although seriously and eagerly involved in the preparatory work for establishing an international criminal court, the US showed hesitance to sign the Rome Statute at the Conference, being one of the seven participant but non-signatory states. The US at the conference insisted on the retaining the states’ discretion over the criminal matters. In addition, it wanted the Court to be acting under the control and authority of the Security Council. [KTemoc adds - because the US has a veto vote in the UNSC]

    However, other participants rejected some of the American proposals, while on some of them a compromise was reached. For example, it has been agreed that the Court would be “complementary” to the national authorities [Note mashgiach, the safeguards], and act only if it would be evident that the state party concerned is unable to deal with the matter.

    During the Clinton Administration the US signed the Rome Statute on 31st December 2000, the virtual deadline for signing, as, under the Statute, a state willing to accede the ICC after that date would have to ratify it.

    However, the treaty was never introduced in the Senate for ratification. Indeed, the Bush Administration launched a campaign against the ICC. First, sending a letter to the UN Secretary-General, the US formally denounced itself from its undertakings and commitments originated from its signature. This came to be known as “unsigning”, a popular term, for which the debate that whether it is possible under international law is underway. [KTemoc notes that Bush is setting legal precedent, at least in international law, as also in the case of illegally attacking and invading a sovereign country]

    Then, the Congress adopted the American Service members’ Protection Act (ASPA), which gives the US President an extensive authority to deal with the ICC. Under the ASPA, the President is authorized to take “any” measure to free the American personnel from the ICC’s jurisdiction. Although hypothetically, since ASPA contains the military intervention option, the Act came to be known as “The Hague Invasion Act”, and caused serious tension and anger in Europe.

    Cenap Cakmak
    Rutgers, The State University of New Jersey, US

  6. From:

    Raising its war against the International Criminal Court to a new level, the administration of President George W. Bush Tuesday cut off military aid to 35 friendly countries in retaliation for their support of the International Criminal Court (ICC) and refusal to exempt U.S. soldiers from the ICC's jurisdiction.

    Under the ASPA, which includes a provision giving the president authorization to use all necessary means to free U.S. servicemen being held by the ICC, the administration was obliged to cut off military aid to countries that have ratified the ICC unless they are NATO allies or specially designated non-NATO allies, such as Argentina, Australia, Japan, South Korea, the Philippines, and Israel. In addition, the president is empowered to ”waive” sanctions on other countries if it serves the national interest.


    Summary - The war of words over the International Criminal Court: American "might" versus international "right"