International Criminal Court Phobia
by Emma Bonino
The World Press Review, April
The resistance of the U.S. government
to support the creation of an International Criminal Court has
placed Washington at odds with 139 signatory nations and added
a sharp bone of contention to its attempts at building a cohesive
Over the past few months a transatlantic
dispute has been brewing on the issue of international judicial
cooperation, and it has been straining relations between the United
States and its allies and friends in the European Union.
The dispute goes beyond the opposition
between the European Union and the United States, because it is
clearly on a worldwide scale. However, unlike the divergent positions
on genetically modified corn or the hole in the ozone layer, which
have been aired ad nauseum by the international mass media, this
dispute, which concerns international law and the rights of all
the inhabitants of the planet, is not a media event and does not
seem to stir the passions of political parties or chanceries or
even movements and organizations whose very purpose is to promote
human rights. It does not even seem to move those who champion
the "global defense of the rights of the weakest," as
is the case of the noisy and itinerant anti-globalization movement.
The issue of the controversy is the International
Criminal Court, a permanent tribunal that would have jurisdiction
over war crimes, crimes against humanity, and genocide. The charter
of the International Criminal Court was approved in July 1998
in Rome, after a laborious diplomatic conference convened by the
As of today, the court charter has been
signed by 139 countries and ratified by 52. For the court to begin
to function, 60 ratifications are needed, and it is likely that
this number will be reached in the next few months.
To achieve this objective, Spain, which
presently chairs the European Union, is working hard, as was confirmed
by President Jose Maria Aznar, speaking before the European Parliament.
In the meantime, on Feb. 8 and 9, there is a conference in Seville
organized by a broad coalition of organizations to speed up the
procedure for ratification of the court's charter by all the Mediterranean
The United States opposes the institution
of the International Criminal Court, while the EU resolutely supports
it. Washington has proclaimed that it is unacceptable that a U.S.
citizen, especially a member of the armed forces, could be indicted
and tried by other than American judges. Even a concession did
not help; namely, to include a clause in the charter recognizing
the precedence of the judicial system of the country of the accused
to try the accused under international law.
After the crimes perpetrated on Sept.
11 against the American people and against all humanity, it was
hoped that the Bush administration, eager to create a world anti-terrorist
coalition, would re-examine its rejection of the court, if only
to respond to the deeply felt need of the international community
to find new and effective tools, including judicial ones, to fight
But Washington's position remained inflexible.
I am among those who, even while recognizing Washington's right
to identify and punish with every means those responsible for
Sept. 11, understand that the best way to conclude the military
phase of the conflict is to designate the masters of terror (such
as Bin Laden) as detainees waiting to be brought to justice (like
Milosevic), and to administer justice in its classic form: a fair
trial, with impartial judges, without special tribunals or jurisdictions.
It is with the bitterness of one who believes
the best model of democracy is the American one that I observe
that not even the Sept. 11 tragedy seems to have helped Americans
and Europeans to bridge the gap between their respective legal
cultures. On Sept. 15, Bush petitioned the EU, which was then
involved in a delicate task of harmonizing its 15 criminal justice
systems, to revise its plan to unify arrest warrants for member
countries, to "eliminate all discrimination with respect
to extradition petitions originating in the United States or other
This was an unfortunate misstep that irritated
the Europeans on two counts. First, because extradition has remained
under the national jurisdiction of EU countries. Second, because
the European Convention on Human Rights prohibits the extradition
of anyone to countries where the death penalty is in effect for
the crimes for which that person is accused.
As if all this were not enough, on Dec.
7, 2001, the ultraconservative Republican senator, Jesse Helms,
won approval for an amendment to the defense budget, which, along
with redenying military aid to countries that ratify the court
charter, proclaimed Washington's right to "liberate by every
means at its disposal" any U.S. soldiers who might be arrested
by the future international court. This amounts to a slap to the
139 countries that have supported the creation of the court.
Before the joint session of the House
of Representatives and the Senate approved the budget, eliminating
Helms' inflammatory proposal and replacing it with a text that
limits itself to denying funds from the Department of Defense
that might be destined for the International Criminal Court, the
European Parliament had taken the lead and fired off an advisory
to Washington. On Dec. 13, it approved a resolution that expresses
serious reservations about judicial cooperation between the United
States and the EU and requires that every agreement in this sphere
must "respect the European Convention on Human Rights."
Admirers of U.S. democracy, who are anxiously
awaiting the goal of 60 ratifications to be reached, hope that
this will happen in time to proclaim at the International Justice
Conference next July 17, which will mark the fourth anniversary
of the Treaty of Rome.
They also hope that someone in Washington
will act to prevent the West's two pillars from deepening their
division and to prevent the United States from finding itself,
in the sphere of international justice, isolated even more than
what its maintenance of the death penalty has brought it.
I wonder what function is fulfilled by
multinational political associations, such as the Socialist International,
international associations of Christian Democrats and liberals,
or multinational associations of so-called civil society, starting
with those that routinely condemn globalization, if they are unwilling
to take a stand on the possibility of a globalization of justice
and the fundamental rights of persons.
Emma Bonino is a member of the European
Parliament and the leader of the Italian Radical Party.