ICC Faces Hostile U.S. Government As It Takes On First Two Cases by David Tobenkin Itís not often that a court itself is made to be a defendant, but the fledgling International Criminal Court (ICC) continues to face a hostile, powerful U.S. government that largely opposes its existence just as it begins investigating its first two cases involving alleged war crimes. The ICC, situated in The Hague in the Netherlands, is based on a treaty concluded in Rome in 1998. The ICC was designed to replace ad hoc war crimes tribunals ranging from the Nuremberg trial of Nazi officials to the more recent proceedings against officials in Rwanda and the former Yugoslavia. The aim is to make the court faster and less expensive than ad hoc tribunals by emphasizing prosecution and punishment of the few, top individuals most responsible for the war crimes, rather than building an exhaustive record of the entire conflict. It has jurisdiction over war crimes, crimes committed against humanity, and genocide occurring since July 1, 2002. However, countries and their citizens only become subject to the court by ratifying or acceding to its implementing treaty, and only then if they are unable or unwi lling to try alleged war criminals, or by referral from the United Nations Security Council. So far 94 countries have become member states, but many of the most powerful countries, and many at the heart of regional conflicts worldwide, such as Japan, China, Russia, Israel and many Arab states, have not yet signed. The United States initially signed the courtís underlying Treaty of Rome but has never ratified it and has since acted to limit the courtís influence through a variety of means. The first two cases under investigation by the ICCís prosecutor, both involving atrocities in war-torn African nations, could help dispel the predictions of court critics that it would quickly become mired in politics and dominated by interests hostile to the United States. The courtís proponents say that the selection of the two cases and the operations of the court to date have already refuted such allegations. ìThe court has been proceeding methodically and professionally,î said Stephen Rickard, acting director of the Washington, D.C., office of the Open Society Institute, a grant-making and operational foundation for the promotion of open and pluralistic societies. ìEven critics have approved of the performance of [ICC Chief Prosecutor Luis Moreno-Ocampo]. When the court was just a theory, there were two theories about how it would turn out. Critics said it would be politicized, run by rogue states and anti-American. Supporters said it would not be politicized and would be dominated by allies of the United States and by judges and prosecutors who were professional. Five years we had no data to test the hypotheses. Now thereís lots of data. What the data shows is that the critics have not just been wrong, they have been spectacularly wrong.î ìItís extraordinary that in the short period of time between the drafting of the statue and today, we have a fully functioning, independent, international court that is preparing to begin its first trials next year,î said Heather Hamilton, vice president of programs for Citizens for Global Solutions, an advocacy group that supports full membership of the United States into the ICC. ìThese two cases not only involve some of the most shocking and atrocious war crimes on earth, but they were also referred by their own countries.î ìThe ICC already enjoys considerable prestige in the eyes of virtually all U.S. allies and many other countries,î added Diane Orentlicher, professor of international law at American University. Rickard pointed out that the most repressive countries have chosen not to join the court and therefore cannot dominate it; that judges are almost uniformly from free countries; that Moreno-Ocampo has acted in a balanced, apolitical fashion; and that the first two cases were not imposed on the countries but were referred by themóand involve matters that ìeveryone would have to agree merit prosecution because of the scope of atrocities involved.î He also said the court is designed as a backstop for countries without functioning court systems, alleviating most countries with functional court systems from the threat of having their citizens subjected to ICC jurisdiction. In addition, Rickard said, these outcomes reflect certain structural safeguards built into the court that have helped it to avoid the fate of the United Nations Human Rights Commission, which many have decried as toothless, highly politicized and anti-United Statesóand which last year elected Libya, widely criticized for human rights violations, as its chair. Countries that join the ICC agree that prosecutors can investigate citizens in their territory or matters that occur there. Likewise, Rickard said, a party that refers a matter to the court opens itself up to investigation, and ìopening yourself up to investigation is a huge price of admission.î Some critics alleged that one of the first steps to be taken by a politicized court would be to prosecute cases against the United States and Israel. Rickard noted that, in fact, one of the first steps Moreno-Ocampo took as a prosecutor in July 2003 was to publicly dismiss all complaints against the United States and Israel as outside the jurisdiction of the court from among the hundreds of complaints that flooded the ICC. There has been general praise for the selection of Moreno-Ocampo as chief prosecutor, in part due to his reputation as an Argentinean prosecutor of members of his countryís former military regime accused of participation in the violent suppression of civilian dissent. However, the U.S. administration remains concerned by the court. The ICC treaty ìputs people that we would put at risk for their lives also at risk legally, in a process thatís not controlled by any organization, that is assuming jurisdiction over people that had not participated in the treaty, that has no time limit and no supervision whatsoever,î Secretary of Defense Donald Rumsfeld has said. One academic critic of the ICC said that it is simply too early to judge the court and suggested that the courtís restrained behavior to date reflects a strategy of staying on its ìbest behaviorî by taking on relatively uncontroversial cases while it remains relatively weak. ìI have strong opposition to the ICC in principle, but I donít see that they have done anything yet which merits criticism,î said Jeremy Rabkin, a Cornell University government professor and a strong critic of the court. ìBut they havenít done anything yet which would win them much praise, either. The prosecutor seems determined to keep a low profile. Thatís reassuring in a way, because it suggests he recognizes how much latent opposition there is out there, or how much harm a runaway ICC can do in the world we actually inhabitóas opposed to the world that ICC proponents like to dream about. But the down side is that this ëbeneath the radarí approach may lull people into forgetting the genuine dangers which the ICC may pose down the road. It is the pattern for most courts [including the U.S. Supreme Court, the European Court of Justice, the European Court of Human Rights and the International Court of Justice] to act quite circumspectly at the beginning and then become more activist over time, when the courtís authority has become more ëestablished.íî Rabkin noted that a lionís share of the courtís funding comes from European countries increasingly at odds with U.S. foreign policy and with relatively less exposure to possible ICC actions, which creates an incentive for those European governments to wield the court as a political weapon against the United States. However, both sides agree that the first two cases being formally investigated by the courtís prosecutor are relatively uncontroversial choices: extreme actions by rogue warlords and interests in war-torn and relatively weak African nations referred to the ICC by the governments of those nations themselves. In June 2004, Moreno-Ocampo announced the courtís first formal investigation, an examination of the conflict in the Democratic Republic of Congoís troubled Ituri province, based on a referral by the Congolese government. A variety of armed factions in Ituri are accused of engaging in actions including civilian massacres, rape as a war tactic, use of child soldiers, mutilation and ritualistic cannibalism. The prosecution will be headed by ICC Deputy Chief Prosecutor Serge Brammertz. The ICC has proposed a division of labor with the Congolese government under which the ICC would prepare investigations for those most responsible for the atrocities, while the Congolese government would bring to justice over time lesser perpetrators through a reformed judicial system. In July 2004, Moreno-Ocampo announced that his office had launched a full investigation into a second situation, involving conflict in northern Uganda, following referral by the Ugandan government. Although much of the press attention has focused on the role of the Lordís Resistance Army, a rebel group accused of kidnapping thousands of children and forcing them to kill others, work as slave labor, or serve as sexual slaves to commanders, Moreno-Ocampo has made it clear that he will investigate all sides. The Ugandan military is also accused of acts of torture, rape and the use of children under the age of 15 in the military. The prosecution will be headed by Christine Chung, formerly a prosecutor in the Manhattan District Attorneyís Office. The court has formally opened investigations into the first two cases. The next steps would be a formal determination by Moreno-Ocampo to prosecute, arrest the accused by forces of member states, and then a trial. Although Moreno-Ocampo last month suggested that the two trials could begin as early as the end of 2005, Hamilton said that even court proponents question whether that target date can be met because of the difficulty of gaining custody of the accused. Possible punishments include financial forfeitures, seizure of assets and imprisonment. Capital punishment is not allowed under the Treaty of Rome. Hamilton said that at last monthís Assembly of States meeting, Moreno-Ocampo announced that his office was also looking into six situations on four continents, two of which are the Uganda and Congo matters, although he gave no details regarding the new investigations. Even with the first two relatively straightforward cases, however, some controversy exists. Some observers question whether the Ugandan government will be willing to accept investigation of its own military forces. Proponents note that under the Treaty of Rome, signatories essentially open themselves up to prosecution of their own forces. Still, Moreno-Ocampo was criticized for appearing with Ugandan President Yoweri Museveni to announce the investigation, given the accusations against the military. Hamilton said that Moreno-Ocampo has subsequently clarified that the investigation will look at all sides relating to the atrocities. Nevertheless, opposition in the United States to the ICC remains strong. In December 2000, the U.S. government signed the Treaty of Rome that created the ICC. However, in May 2002, President Bush effectively unsigned the ICC treaty after the administration expressed concerns that its dominant role in peacekeeping operations worldwide and operations pursuant to its war on terrorism would cause it to be a target for frivolous investigations. The United States now has a standing law preventing it from cooperating with the court. In August 2002, Congress passed and President Bush signed into law the American Servicemembersí Protection Act of 2002, which prohibits U.S. agencies from cooperating with the court and cuts off military aid to ICC member states, save for exempted states. The law also authorizes invasion of The Hague to retrieve incarcerated U.S. citizens, leading some to dub it the ìHague Invasion Act.î The Bush administration also launched a campaign of globally establishing bilateral immunity agreements under which counterparties agreed to turn over U.S. citizens sought by the court to U.S. custody. At least 75 countries have signed such agreements. Additionally, in June 2002 the administration threatened to veto a six-month extension of a U.N. peacekeeping mission in Bosnia if the U.N. Security Council did not pass a resolution effectively granting immunity to all U.S. servicemen or officials engaged in peacekeeping operations. A resolution for a one-year agreement to that effect was passed and renewed for an additional year in 2003. However, in 2004, after the Abu Ghraib prison scandal, the Security Council refused to renew the resolution and the exemption expired in June. ICC proponents also allege that the Bush administration has repeatedly urged countries not to ratify the treaty and that U.S. pressure has stalled or prolonged the ratification process for a number of countries, although they declined to name countries or sources. The pace at which nations are becoming member states has definitely slowed. Over the past year, only three new countries have joined: Georgia, Burkina Faso and, most recently, Congo. Proponents say the most likely additional countries to join within the next five years are Burundi, Kenya, the Czech Republic, Mexico, Yemen, Japan and the Ukraine. Democratic presidential candidate John Kerry, who has publicly espoused a less unilateral U.S. foreign policy approach, has not promised to embrace the treaty but appears less opposed to it. ìKerry stated he supports U.S. involvement with the International Criminal Court, but wants protection for U.S. officials and military persons,î Hamilton said. ìThat would be a huge difference from the Bush administration.î Representatives of Kerry did not respond to a request for confirmation of his position. Democratic presidential candidate John Kerry, who has publicly espoused a less unilateral U.S. foreign policy approach, has not promised to embrace the treaty but appears less opposed to it. ìKerry stated he supports U.S. involvement with the International Criminal Court, but wants protection for U.S. officials and military persons,î Hamilton said. ìThat would be a huge difference from the Bush administration.î Representatives of Kerry did not respond to a request for confirmation of his position. Financial restraints, as much as political opposition and nonparticipation, are limiting the scope of the courtís operations. On Sept. 10, the Assembly of States Parties approved the 2005 budget, including $81.3 million for the courtís expenses, a working capital fund of $6.8 million, and a contingency fund of $12.2 million. Although that may sound like a lot of money, supporting 200 employees, both trial and appellate chambers, a wide variety of employees engaged in administrative activities, and the costs of starting up the court means that only a portion of the total funding is allocated to prosecutorial activities. One large question for the court is whether it can grow into the larger, more powerful international organization that multilateralists desireóand into a deterrent to potential war criminals worldwide and to governments that resist prosecuting their own citizens. In addition to referral by a member country itself, or by a third-party member country, the U.N. Security Council can refer cases involving countries that are not ICC member states. But that is only if no Security Council member vetoes the referral resolutionóunlikely given the hostile stance of the United States toward the court. ìIf the court is to play a role in the harder cases where it is not wanted, it requires the U.S. to play a positive role and not use its veto in the Security Council,î Rickard said. An irony of the current U.S. stance is that its opposition to the court checks its ability to use the ICC to resolve the administrationís claims that war crimes and genocide have been perpetrated by Sudanese militias with ties to the government of Sudan, which is not a member of the ICC. Some wonder whether, despite its opposition to the ICC, the current administration would decline to veto a Security Council referral of the atrocities in the Sudan to the court. However, Security Council members France, Russia and China have all questioned the United Statesí strong stance against Sudan, making a referral resolution by the Security Council seemingly less likely. Hamilton said there is talk of such a resolution, but none has been introduced. Perhaps the ultimate question regarding the court is whether it will derail diplomacy necessary to s olve the worldís most vexing conflicts. Even proponents of the ICC concede that a danger exists of counterproductive or harmful actions by the court that could threaten possible negotiations on such conflicts. ìIf not pursued carefully and at the appropriate time, however, ICC action could disrupt peace negotiations or spark further violence,î noted a June 2004 Citizens for Global Solutions report on the ICC and its first two cases. The report said to advance its aims, and avoid such outcomes, the court must avoid semblance of partiality, ensure that investigations yield satisfactory results in a timely fashion, work locally and communicate with the affected population, ensure that justice efforts promote a sustainable peace, and work with local and national civil society to determine the most appropriate mix of justice and reconciliation mechanisms. Hamilton said that such concerns notwithstanding, the court is an integral component to resolving global conflicts. ìPeace accords that do not include some form of accountability fail,î she said, noting the continuing malevolent activities of some ousted war crimes perpetrators granted amnesty in other countries and the tendency toward revenge from parties injured by their activities when the perpetrators are not punished. ICC critic Rabkin demurred. ìAd hoc tribunals are better,î he said. ìYou canít take the diplomacy out of these matters, as this court attempts. I think the opportunity for good of this court is small and the probability that it will be harmful is high. I think it is likely there will be a confrontation with the United States after which it will be destroyed or altered or it will dissipate over timeóthere are many international institutions out there that donít do anything.î David Tobenkin is a freelance writer in Washington, D.C.