Stardate 20020828.1731

(On Screen): The struggle between the US and Europeans over the International Criminal Court continues apace. After a brinkmanship crisis in the UN was averted by agreeing to postpone a rematch for a year (look for round two next Spring) the US began trying to get individual nations to make bilateral agreements with us to not give our people to the ICC. The Europeans take a dim view of this, and they've been talking about making admission into the EU in part conditional upon not making any such exceptions regarding ICC jurisdiction.

And in their latest salvo, they've decided that such exemptions are not permitted under International Law.

European Union nations have no right under international law to exempt U.S. citizens from prosecutions at the International Criminal Court, according to a paper drafted by the legal service of the EU head office.

The document a copy of which was obtained Wednesday by The Associated Press says countries that agree to specifically keep Americans out of the hands of the international court effectively make themselves safe havens for suspects in cases of war crimes, genocide or other crimes against humanity.

That, it adds, "defeats the very object and purpose" of the court, which was set up to bring war crimes suspects to justice when national governments refuse to.

Which, yet again, begs the question of just exactly what "International Law" this was based on, and it seems that the answer is the ICC treaty itself, which claims universal jurisdiction and admits no exemptions.

Of course, the entire argument between the US and Europe is precisely that the US doesn't grant the validity of the ICC treaty and doesn't accept that it actually does establish any kind of binding "international law".

The European argument here is circular. They're using the content of the controversial treaty as evidence that objections voiced within the controversy are invalid, without acknowledging that those raising the objections don't grant validity to the treaty. It's like people who use the fact that the Bible says it's the "word of God" as proof that it must be. (After all, the Bible can't contain a lie, because it's the Word of God, right?)

At the same time, they continue to contradict themselves. They keep claiming that the US doesn't require immunity from the court because adequate safeguards already exist to prevent politically-motivated witch hunts against Americans. They claim that Americans serving in peacekeeping forces are already protected against the court by provisions already present in the treaty.

So why, then, is it the case that if the court isn't actually going to be used against Americans that any bilateral immunity agreement protecting Americans turns those nations into "safe havens for suspects in cases of war crimes, genocide or other crimes against humanity"? It would only protect Americans, who we are told won't ever be accused of such things. Which suspects of crimes like that would these agreements actually give safe haven?

In another context, I saw an accusation that the US was being hypocritical because it supported the Yugoslav and Rwanda tribunals while at the same time it is trying to immunize itself against the ICC.

Actually, the position of the US is very clear and totally consistent. We support the establishment of specific tribunals whose existence and powers are carefully bounded, both in duration and in subject matter, which are directly responsible to the authority that created them (currently, the UN Security Council) which can override them or even disband them if they abuse their powers.

The US opposes creation of a permanent tribunal which is answerable to no one, which can investigate anyone it likes, and apply ex post facto laws them, laws it will write itself. The two cases are not comparable.

The US doesn't oppose tribunals as such. It opposes the creation of institutions which have power without accountability, where those wielding the power are selected through a process which can be subverted to serve narrow sordid political goals. The fact that such an institution happens to be a tribunal has little to do with it.

The Europeans claim that adequate "checks and balances" exist to prevent such abuse, but I've looked closely and I see nothing resembling such controls which would reduce my fear of the ICC, or cause me to reconsider my total opposition to it. (Previous articles about the ICC can be found here, here and here.)