Posted on 04/14/2002 5:52:59 PM PDT by Tumbleweed_Connection
Now that the ICC is a reality, the stirrings of criticism and fear that have been engendered by the new forum for prosecuting crimes against humanity are once percolating to a rapid boil. Some of the most paranoid recall the image of General Hap Arnold, hero of the American air forces during World War Two, reflecting only half tongue-in-cheek that it was a good thing the Allies won the war, or it might be he -- not Herman Goering -- in the dock at Nuremberg.
But what exactly is the Court’s shortcoming that has folks such as Jesse Helms, R-N.C., in such a dither?
The ICC treaty (a.k.a the Rome Statute), as written and signed off on by former President Bill Clinton, already contains provisions designed to discourage overzealous prosecutors or judges with political agendas from blithely sitting in judgment on whether the U.S., while beating-up on terrorists, has trespassed against its vague definition of a "crime of aggression.”
As presently configured, the treaty says investigations can be launched only with the approval of a three-judge panel.
Furthermore, the ICC must defer to United States jurisdiction in cases involving United States citizens or service personnel, proceeding in such cases only if it determines that the United States has decided not to prosecute the person concerned and that the decision resulted from the unwillingness or inability of the United States to prosecute the alleged crime.
Finally, the UN Security Council will have the power to suspend any prosecution.
Missing: Effective U.S. Veto
However, and here lies the salient rub, the original U.S. negotiators of the Rome Statute were unable to obtain the ultimate safeguard: a U.S. veto in the form of a requirement that the UN Security Council specifically vote to authorize each new investigation.
Instead under the present language, an ICC investigation of an alleged war crime or crime against humanity can proceed -- unless all five permanent members of the Security Council agree to suspend it.
Upon signing the Rome Statute, President Clinton stated he did not intend to submit the Rome Statute in its present form to the Senate for advice and consent to ratification. The Bush Administration has also stated that it will not seek the Senate’s advice and consent to ratification of the Rome Statute. Bottom line: the U.S. has not agreed to be a member of the ICC.
But ICC opponent Jesse Helms, R-N.C., fears not only the lack of a plenary U.S. veto power but also that the new court will claim jurisdiction over citizens of countries that have not agreed to be members of it. "[M]any Americans may not realize that the Rome Treaty can apply to Americans even if the Senate has declined to ratify the treaty,” Helms warns.
Helms adds, "The Senate has a responsibility to enact an insurance policy for our troops and officials -- Secretary of Defense Rumsfeld and Secretary of State Powell -- to protect all of them from a permanent kangaroo court where the United States has no veto.” His American Servicemembers Protection Act, more than an "insurance policy,” would literally cancel any power the Court has or could interpret it has over U.S. actions in the world.
Draconian when compared with the House version, the Helms act:
Prohibits U.S. cooperation with the court, including use of taxpayer funding or sharing of classified information,
Restricts U.S. involvement in peacekeeping missions unless the UN specifically exempts U.S. troops from prosecution by the International Criminal Court,
Limits U.S. aid to allies unless they also sign accords to shield U.S. troops on their soil from being turned over to the court, and
Authorizes the President to take necessary action to rescue any U.S. soldiers who may be improperly handed over to that Court.
Battling Prosecutors, Not Terrorists
"Without this amendment,” Helms says, "the Rome Treaty can expose U.S. soldiers and civilian officials to the risk of prosecution separate and apart from U.S. law. Therefore they could very well be battling international bureaucrats and prosecutors instead of terrorists like those who on September 11 committed mass murder against thousands of innocent American civilians in New York City and at the Pentagon.”
A House bill waiting in the wings, the American Citizens’ Protection and War Criminal Prosecution Act, seeks not to cancel the Court but to encourage continued negotiations better limiting and defining potential American exposure to harassing litigation. Among other things, this bill would:
Seek a definition of the "crime of aggression” under the Rome Statute that is consistent with international law and fully respects the right of self-defense of the United States and its allies,
Ensure that United States interests are protected in the negotiations over the remaining elements of the International Criminal Court regime,
Provide appropriate diplomatic and legal assistance to United States citizens, especially United States servicemembers and their dependents, who face prosecution without full due process in any forum, including before the International Criminal Court, and
Undertake, in all diplomatic negotiations related to international legal matters, to ensure that no United States citizen, especially United States servicemembers and their dependents, will face frivolous prosecutions or prosecutions without full due process of law.
Require studies and reports by various agencies to be submitted to Congress, including a review of the crimes defined under the Rome Statute and a comparison of the due process protections afforded under the Rome Statute to those due process protections afforded United States servicemembers and their dependents under Status of Forces Agreements.
The question remains whether the more dramatic concerns about the ICC are justified.
Some skeptics point to a 1999 complaint by European and Canadian law professors to the International Criminal Tribunal for the former Yugoslavia alleging that NATO had committed crimes against humanity by killing too many Serbian noncombatants in the bombing campaign that ended the ethnic cleansing of Kosovar Albanians.
Eventually, the tribunal’s prosecutors found no evidence to support prosecution. However, to the consternation of the Pentagon, prosecutors did not dismiss the complaint out of hand.
Unlike the ICC, the Yugoslavia tribunal was operating under a strictly limited Security Council grant of jurisdiction.
President Bush we stand behind you 100% !!!
David
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