End Imperial Impunity
by Gregory Stanton
In These Times magazine, December 1999
In Rome on July 17, 1998, 120 nations voted to create a permanent
International Criminal Court (ICC) to try war crimes, crimes against
humanity and genocide. Only seven nations opposed the measure,
including Iraq, China, Israel and the United States.
The ICC will be created when 60 nations ratify the Rome Statute,
which is expected to occur by 2002. The ICC will be headquartered
in The Hague, with 18 judges and its chief and deputy prosecutors
elected by a majority of nations that have ratified the statute.
Only nations that have signed and ratified may contribute judges
and prosecutors. Eighty-nine nations have now signed the Rome
Statute, including all of America's NATO allies. Four have ratified.
The United States still refuses to sign.
This year, representatives of more than 100 nations have met
twice at the United Nations to settle the rules of procedure and
evidence. Another preparatory session will be held from Nov. 29
to Dec. 17.
The United States now acknowledges that the ICC will come
into being with or without its signature. And it recognizes that
the Rome Statute cannot be changed. Nevertheless, the United States
used the August preparatory meetings to lobby for binding agreements
that would alter the statute without formally amending it. The
most dangerous of the U.S. demands is immunity for official acts
of government officials. The so-called "like-minded states,"
which were in the majority, rejected this position as an obstacle
to the ICC's effectiveness. But it is outrageous that the United
States is advocating it at all.
The United States is concerned that the president or secretary
of defense, or U.S. troops acting on their orders, could be charged
with war crimes for future acts like the bombing of Cambodia,
the mining of Nicaragua's harbors or the bombing of the Sudanese
factory. The United States wants a binding agreement that official
government acts will be immune from prosecution. In other words,
the country accused of crimes would be the judge of whether the
acts were official.
Such immunity for government officials would be a giant step
backward for international law. Saddam Hussein could claim that
his genocidal chemical warfare against the Kurds was an official
act to protect national security. Even the Nazis could have claimed
that their crimes were official acts.
Granting immunity to official acts would blast away the bedrock
of international humanitarian law, the Nuremberg Principles, which
hold that no person, whatever his rank, is immune from prosecution
for crimes against humanity. The U.S. position would violate the
Genocide Convention of 1948, the Geneva Conventions of 1949, and
the Torture Convention, treaties that the United States has ratified.
The U.S. position would destroy the purpose of the ICC, which
is to render justice when national courts cannot or will not punish
leaders who commit genocide, war crimes and crimes against humanity.
At a recent American Bar Association meeting, I pointed out
the short-sightedness of the U.S. position to a State Department
lawyer. He replied: "The president couldn't do his job very
well from a jail in The Hague."
But multiple safeguards built into the Rome Statute would
prevent indictments of American officials. The statute gives national
courts priority. If allegations are made against a U.S. official,
the ICC first must refer them to the U.S. government, and if the
United States conducts a good faith investigation and finds them
groundless, the ICC would lack any jurisdiction. Further, war
crimes must be intentional, providing a defense against prosecution
for accidental bombings. Finally, a majority of the U.N. Security
Council, where the United States wields great influence, can take
jurisdiction over a case away from the ICC.
The United States doesn't need "official acts" of
immunity to protect its servicemen or leaders from ICC prosecution.
The situation is different for dictatorships. National courts
have failed to punish leaders who commit massive crimes against
their own people because those courts are controlled by the very
same dictators who commit the crimes. Only an international court
can bring tyrants such as Idi Amin and Pol Pot to justice. Does
the United States want to create immunity from prosecution for
the "official acts" of such dictators?
Further, ad hoc tribunals like those for Yugoslavia and Rwanda
are no deterrent to future killers. They are slow, costly to establish
and will create inconsistent international criminal law.
It is time for the United States to reassert its international
leadership in the enforcement of human rights by rejoining its
allies and signing the Rome Statute. The United States should
support justice for all; not justice for all except government
officials; not justice for all except the United States. The era
of impunity for war crimes, genocide and crimes against humanity
Gregory Stanton, a former professor of international law and
State Department official, drafted the U.N. resolutions that created
the Rwanda Tribunal. He is the director of the World Federalist
Association's Campaign to End Genocide and the coordinator of
the Coalition for an International Criminal Court (www.iccnow.org).