2. Nation Comment: Unsigning the ICC. ------------------------------------------------------- 1. U.S. to Renounce Its Role in Pact for World Tribunal by Neil A. Lewis
Published on Sunday, May 5, 2002 in the New York Times
WASHINGTON, May 4 - The Bush administration has decided to renounce formally any involvement in a treaty setting up an international criminal court and is expected to declare that the signing of the document by the Clinton administration is no longer valid, government officials said today.
The "unsigning" of the treaty, which is expected to be announced on Monday, will be a decisive rejection by the Bush White House of the concept of a permanent tribunal designed to prosecute individuals for genocide, crimes against humanity and other war crimes.
The administration has long argued that the court has the potential to create havoc for the United States, exposing American soldiers and officials overseas to capricious and mischievous prosecutions.
"We think it was a mistake to have signed it," an administration official said. "We have said we will not submit it to the Senate for ratification." The renunciation, officials said, also means the United States will not recognize the court's jurisdiction and will not submit to any of its orders.
In addition, other officials said, the United States will simultaneously assert that it will not be bound by the Vienna Convention on the Law of Treaties, a 1969 pact that outlines the obligations of nations to obey other international treaties.
Article 18 of the Vienna Convention requires signatory nations like the United States to refrain from taking steps to undermine treaties they sign, even if they do not ratify them. As with the treaty for the International Criminal Court, the United States signed but did not ratify the Vienna agreement.
A government official said the administration planned to make its decision known on Monday in a speech by Under Secretary of State Marc Grossman in Washington and in a briefing for foreign journalists by Pierre-Richard Prosper, the State Department's ambassador for war crimes issues. Representatives of human rights groups also said they expected the decision, which was first reported by Reuters news service on Friday, to be announced then.
The pointed repudiation of the International Criminal Court, while not unexpected, is certain to add to the friction between the United States and much of the world, notably Europe, where policy makers have grumbled ever more loudly about the Bush administration's inclination to steer away from multinational obligations.
Despite the strong stance by the United States, the International Criminal Court will begin operations next year in The Hague. More than the required number of 60 nations had signed the treaty as of last month, and the court's jurisdiction will cover crimes committed after July 1 of this year.
It will become the first new international judicial body since the International Court of Justice, or World Court, was created in 1945 to adjudicate disputes between states. Until now, individuals were tried in ad hoc or specially created tribunals for war crimes like those now in operation for offenses committed in Rwanda and the countries that formerly made up Yugoslavia, both modeled on the Nuremberg trials of Nazi officials following World War II.
Harold Hongju Koh, a Yale law professor and a former assistant secretary of state in the Clinton administration, said the retraction of the signature on the treaty would be a profound error.
"The result is that the administration is losing a major opportunity to shape the court so it could be useful to the United States," Mr. Koh said. "Now that the court exists, it's important to deal with it. If the administration leaves it unmanaged, it may create difficulties for us and nations like Israel."
He described the opportunity as similar to the United States Supreme Court's 1803 decision in Marbury v. Madison that courts could subject the other branches of government to its jurisdiction, decisively defining its role in the new nation.
"This is an international Marbury versus Madison moment," he said.
John R. Bolton, the under secretary of state for arms control, who has been a leading voice in opposing American participation in the International Criminal Court, wrote extensively about the subject before he took office, calling it "a product of fuzzy-minded romanticism" and "not just naïve, but dangerous."
Mr. Bolton, in an article in The National Interest in 1999, argued that the court would force the United States to forfeit some of its sovereignty and unique concept of due process to a foreign and possibly unrestrained prosecutor. He said that it was not just American soldiers who would be in the most jeopardy, but "the president, the cabinet officers who comprise the National Security Council, and other senior civilian and military leaders responsible for our defense and foreign policy."
Palitha Kohona, the chief of the treaty section for the United Nations, said it was unheard of for a nation that signed a treaty to withdraw that signature. David J. Scheffer, who was ambassador at large for war crimes and who signed the treaty for the Clinton administration, said that withdrawing the signature exceeded even the actions of the Reagan administration, which in 1987 decided it would not seek ratification of an amendment to the Geneva Conventions that the Carter administration had signed. The action concerned a document known as Protocol 1, which would have extended protections to soldiers of insurgent movements.
"There has never been an attempt to literally remove the document," he said.
Mr. Scheffer said the Bush administration's actions would not only undermine international justice but also damage American interests.
"The perception will be that the United States walked away from international justice and forfeited its leadership role," he said. "It will be a dramatic moment in international legal history."
One official said the Bush White House was prepared to say last September that it would withdraw the signature on the treaty, but the attacks on the World Trade Center and the Pentagon that month delayed an announcement. Officials were not only occupied with the sudden fight against terrorism but also thought that renouncing the treaty would appear unseemly, the official said.
Most democratic nations and all European Union countries have ratified the treaty - except Greece, which is in the process of doing so - along with Canada, New Zealand and a number of African, Eastern European and Central Asian countries. Israel has signed it but not ratified. Egypt, Iran and Syria have signed. India, Pakistan and China have neither signed nor ratified. Russia has signed but not ratified.
Copyright 2002 The New York Times Company
******************************************************* 2. The Nation COMMENT | April 29, 2002
Unsigning the ICC
by JOHN B. ANDERSON
History will record April 11, 2002, as a day of enormous significance in the effort to achieve the rule of law in the conduct of international affairs. It marks the day the Treaty of Rome, establishing an International Criminal Court, was to be ratified by sixty nations, thus triggering the establishment of the global tribunal with jurisdiction over those who commit war crimes, crimes against humanity or genocide. Tragically, instead of submitting the treaty to the Senate for ratification, George W. Bush would strike our name from the treaty altogether. In a press conference two weeks before the sixtieth nation deposited its ratification, the Administration's ambassador-at-large for war crimes, Pierre Prosper, made it clear that the President is still a hostage to the reactionary sponsors of the misnamed American Servicemembers Protection Act. This act would allow the United States to invade The Hague, presumed seat of the new tribunal, to "free" any American brought before the bar of international justice. In addition, any existing military assistance program to a non-NATO country that is "a party to" the ICC would be suspended.
The ambassador refused to deny that the idea of unsigning the treaty is under active consideration and review. Mere contemplation of such a course of action is bad enough, but active consideration at a time of war is almost beyond belief. We were isolated from virtually every democratic nation with our vote against the ICC on July 17, 1998, when the ICC treaty was adopted by a vote of 120 to 7. Since then it has been signed by our closest allies, including every NATO country but Turkey and all members of the European Union.
The twentieth century was the bloodiest in human history, with a total of 174 million people killed in genocide and mass murders. If there was ever a moment when a US President should demonstrate his fealty to the abiding principles of law and justice, now is that moment. No President has ever revoked the signature of a former chief executive on a treaty by unsigning it. If Bush carries out this unprecedented action, prodded by the right wing of his party, his capitulation will not only dismay our friends and delight our enemies but also strip us of any ability to negotiate changes to the treaty we might validly seek to make. And as we mute our response to the call for a worldwide embrace of the rule of law, we traduce one of the most important principles of American democracy.
http://www.thenation.com/doc.mhtml?i=20020429&s=anderson
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