Rogue Nation: American Unilateralism and the Failure of Good Intentions (2003) (23 page)

Having ratified the treaty, however, the United States then moved to gut it by passing legislation that permitted U.S. officials to refuse on-site inspections, prohibit removal of chemical samples from U.S. territory for independent analysis, and sharply limit the number of U.S. facilities subject to declaration and routine inspection. The United States also refused to pay its share of the costs of the convention and neglected to provide adequate financing to help destroy Russia’s vast stockpiles.

In his 1969 statement, Nixon had treated biological weapons separately from chemical ones. In 1972, UN discussions led to conclusion of a Biological and Toxins Weapons Convention (BWC) committing each party ‘never in any circumstances to develop, produce, stockpile or otherwise acquire or retain’ biological agents or toxins for military purposes. This treaty came into force upon U.S. ratification in 1975 and has remained the controlling convention ever since. Unfortunately, it has no enforcement or verification provisions; and in the 1990
s
, Russian President Boris Yeltsin’s revelations of illegal Soviet anthrax programs as well as concern about Iraq’s germ warfare capabilities led to creation of a UN committee for developing a new protocol to put teeth into the agreement in the form of a legally binding verification regime. The committee hoped to have a document ready for signature by 2001. The United States provided significant support and called the plan ‘a major step forward.’ In December 2000, however, a new tone sounded from Washington when private analysts and some U.S. defense officials suggested to
New Scientist
magazine that the treaties banning chemical and biological weapons should be rewritten to allow ‘non lethal’ versions that could put entire armies to sleep or disable vehicles and weapons by eating their plastics or making their tires brittle.
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Still, when the final document was presented for signature in March 2001 the major problem for the United States remained inadequate detection and verification. Its allies pushed hard for U.S. acceptance of the proposed system of regular reporting and inspection, including challenge inspections. But having simulated the proposed system on its own chemical and biological installations, the U.S. had concluded that it not only didn’t work but could actually lead to increased suspicions. On July 25, 2001, U.S. Ambassador Donald Mahley told the UN committee that the United States was ceasing negotiations because ‘in our assessment, the draft Protocol would put national security and confidential business information at risk.’
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Japanese Ambassador Seiichiro Noboru spoke for the international community when he said, ‘I was rather surprised by the U.S. argument at this stage.’
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At a subsequent BWC review meeting in November, Undersecretary Bolton made several suggestions for strengthening the BWC that he claimed had never been considered. In fact, however, all but one of them were contained in the Protocol the United States had just rejected. None of that deterred Bolton, who proposed on the last day of the conference that the committee simply be disbanded. A few months later, the United States insisted on having the head of the Chemical Weapons Convention inspection unit fired on grounds, we said, of financial mismanagement.
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But no one believed that. As Lord Rea of Britain pointed out, much of the financial difficulty was the result of U.S. refusal to pay its dues.
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The real reason, many believed, was that the inspections director was planning unannounced inspections in the United States.

SOVEREIGNTY TRUMPS HUMAN RIGHTS

I
n similar fashion, the United States has rejected a protocol to strengthen the 1987 Convention Against Torture (many believe out of reluctance to allow inspections of the condition of Taliban prisoners at Guantanamo Bay); the Convention on Elimination of All Forms of Discrimination Against Women; and the International Convention on the Rights of the Child (out of conservative fears that it would interfere with ‘family values’).

But the piece de resistance of all these international treaty and convention battles is the struggle over the International Criminal Court (ICC). Here the various conceptual and institutional difficulties the United States has in its intercourse with the international community all combine in one dramatic and revealing picture.

The ICC had its origins in the 1948 Convention on Genocide, which was prompted by the post-World War II revelations of the Holocaust. The UN resolution calling for adoption of the Convention also invited the UN’s International Law Commission to look into the desirability of establishing an international court for putting on trial persons charged with genocide. To make a long story short, the atrocities in Yugoslavia and Rwanda in the early 1990
s
gave rise to two developments. At the urging of the United States, the ad hoc International Criminal Tribunals on Yugoslavia and Rwanda were established to prosecute the perpetrators of genocide in those two countries. At the same time, the International Law Commission developed a draft statute to create the long-discussed International Criminal Court, and this statute was presented for adoption by the UN at a special conference in Rome in June and July of 1998.

It is important to understand the main issues at stake at this seminal conference. First was the question of the independence of the court. Would its jurisdiction require case-by-case approval of the UN Security Council and thus be subject to the veto power of its permanent members (U.S., Russia, China, U.K., and France), or would it have a degree of independent authority? A second question concerned the independence of the prosecutor and whether he or she could launch prosecutions at will. Then there was the so-called consent regime issue. Would there be universal jurisdiction such that the court would have authority to prosecute any pertinent crime committed anywhere in the world? Or would jurisdiction require the case-by-case approval of the country where the crime had taken place or of the country of the nationality of the accused? Would the court have jurisdiction over crimes committed during civil wars? Fourth was the question of national versus ICC jurisdiction. Could the ICC prosecute if national courts have initiated their own criminal proceedings? Finally, there was the question of the past. Would the court be able to prosecute Henry Kissinger, for example, over alleged responsibility for the 1971 coup in Chile?

Each of these questions was, of course, fraught with implications for sovereignty and with, in American eyes, the potential for politically motivated action against U.S. citizens by anti-American regimes. The effort to establish the court was driven by the so-called Like Minded Group of sixty countries under the chairmanship of Canada and including most U.S. allies around the world. While the United States insisted it supported the ICC in principle, it categorically opposed a court that could indict U.S. citizens without prior U.S. approval. In particular it abhorred the notion of universal jurisdiction, which had been introduced by Germany, and threatened active opposition if any variant of it was codified in the statute. U.S. concern was so strong that Secretary of Defense Cohen was reported to have linked U.S. troop deployments in Germany to the issue.
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In the debate that ensued over the five major questions, it was pretty much the United States against the Like Minded Group with the rest of the world watching. Nonetheless, the Americans scored many points and got much of the draft statute watered down. With regard to independence, the United States wanted case-by-case approval by the Security Council. Initially, the other permanent members of the Security Council backed the U.S. position, but when Britain abandoned this position as legally and morally untenable, the dam was broken and eventually the United States was left isolated. The decision was that, to ensure its credibility as an independent court, the ICC would have to be able to prosecute without prior Security Council approval. To prevent frivolous, politically motivated suits, however, it was agreed that in order to launch an investigation the prosecutor would have to have the approval of a panel of ICC judges. It was also agreed that the Security Council could adopt a resolution to stop any ICC investigation. On the question of jurisdiction the United States scored a partial gain. Universal jurisdiction was deleted. Under the final wording of the statute, the ICC can act only if the state in which the crime took place or the state of nationality of the accused consents or is a party to the ICC Convention. On the question of civil wars, the agreement was for the ICC to have jurisdiction, a small defeat for the U.S. position. But on national versus ICC jurisdiction the United States scored a major win with the agreement that the ICC can prosecute only if national courts fail to act. It was also agreed that there would be a non-renewable seven-year period during which states could opt out of ICC jurisdiction over war crimes.
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At the last minute the United States sought a special exemption for nationals of non-member states who were carrying out official duties. This would have allowed a government to block prosecution of its citizens at will and would have undermined the court’s credibility. It was defeated. But the United States did succeed in having national security adopted as a ground for refusal to cooperate with the court, and in having superior’s orders established as a ground of defense. Two opportunities for states to challenge and appeal the courts jurisdiction were also provided.

None of this, however, was enough for the United States, and it voted against creation of the court, along with China, Iraq, Libya, Yemen, Qatar, and Israel. The final vote was 120 in favor, 7 against, and 21 abstaining. The court would become effective when the accord was ratified by the sixtieth country.

The international community’s defiance of U.S. wishes led to averitable U.S. jihad against the court’s establishment. President Clinton signed the convention on the very last day of his administration, but only as a means of giving incoming President Bush the option of working with the UN to shape implementation of the court. The Bush administration, however, gave early indication that it might go so far as to unsign the treaty.
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In the fall of 2001, the Senate adopted the American Service-members Protection Act, submitted by Senator Helms, which would have prohibited the United States from cooperating in any way with the ICC, and barred U.S. military assistance to any country supporting the ICC. The bill also directed the United States to use any means, including force, to release any American citizens held by the court. It was this clause that gave the bill its nickname ‘The Hague invasion act.’ It did not become law, but the other measures restricting cooperation with the ICC did.

As it became apparent in the winter and spring of 2002 that the needed sixty ratifications would soon be achieved, the U.S. government ran an increasingly high-pressure campaign to discourage ratification, but to no avail. On April 11 the sixtieth signature was affixed and the court went into force. At that point the U.S. government went into overdrive. In an unprecedented letter to UN Secretary General Kofi Annan, Undersecretary Bolton informed him that the United States was effectively removing its signature from the court treaty. The United States, he explained, ‘has a unique role in the world in helping to defend freedom and advance the cause of humanity,’ and Americans might therefore become targets of politicized prosecutions. Thus, the United States refused to be a party to the treaty.
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But there was still a problem. While the court would have no jurisdiction in the United States, American citizens might be operating in countries that are parties to the ICC, and the court could still wind up with jurisdiction over Americans without the consent of their government. U.S. officials argued it was unfair to subject Americans anywhere to jurisdiction of a treaty to which their government was not a party. Opponents pointed out that if an American commits an ordinary crime abroad, the foreign government has the right to prosecute without U.S. approval. In the event of an atrocity, the same government would be well within its rights to delegate prosecution to the ICC. Moreover, the United States could gain great influence over the course of any such prosecution if it simply ratified the ICC treaty. It was also noted that while the United States does play a key role in global hot spots, it is not entirely alone. France, Britain, and others have troops and personnel in various trouble spots, and they seemed to have no problem with the court. Finally, even in the event of an American being accused in another country, under the rules of the court, the United States would have the right to prosecute first. Only if it refused to investigate would the ICC have any ability to step in. The counter to this was that the United States might have good reasons not to investigate if it thought the charge fraudulent.

But this dispute was not about debating points, it was about power. U.S. officials launched a campaign to pressure many countries that ratified the treaty to sign special bilateral agreements exempting U.S. citizens from the court’s jurisdiction in their domains. In Europe this put the U.S. government on a collision course with the EU, which told countries like Romania and Poland that acceding to U.S. pressure could endanger their candidacy for EU membership.

The United States threatened to veto routine renewal of all current UN peacekeeping missions, beginning with Bosnia, if the Security Council did not grant all UN peacekeepers permanent immunity from the court. In the end, the Security Council reluctantly granted a one-year immunity to American nationals. This was a face-saving, halfway solution, but the Council also expressed the intention to renew the exemption annually. So the United States seemed to have won. But Mexican Ambassador Adolfo Aguilar Zinser spoke for many when he said: ‘The general opinion of the international community is that this is wrong.’
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Another ambassador from one of America’s oldest and closest allies, told me privately in the words of this chapter’s epigraph: ‘America always preaches rule of law, but in the end it always places itself above the law.’