There is always something disturbing about a leader that pronounces himself above the law. That only partially explains the unease surrounding the United States’ decision to oppose creation of the International Criminal Court. Just as important have been the implications of that resistance — which were on full display last week in the United Nations, where the U.S. had threatened to end the peacekeeping mission in Bosnia.
A temporary solution was reached, but U.S. demands that it be given blanket immunity from the court’s jurisdiction fly in the face of established notions of justice. Worse, there is no reason for this impasse: The ICC was designed in such a way as to foreclose the political prosecutions the U.S. fears.
The controversy was triggered by a Security Council resolution that sought a six-month extension of the 1,500-strong U.N. police training mission in Bosnia. It also extended authorization for the 18,000-person North Atlantic Treaty Organization-led peacekeeping force in Bosnia for one year. The U.S. originally threatened to veto the resolution unless U.S. participants in the peacekeeping mission — 46 police trainers and 3,100 soldiers in the NATO force — were given immunity from the jurisdiction of the ICC.
That position is unpopular. More than 100 nations met at U.N. headquarters to express dismay at the U.S. proposal and sent a letter to Security Council members urging them to stand fast against the U.S. position and respect the ICC’s independence. Ultimately, Washington compromised in the face of unflinching opposition from other Security Council members and its allies, including the 15 EU governments that have ratified the ICC treaty. It agreed to a 12-day extension — until July 15 — which would allow negotiations to continue.
The U.S. position has powerful implications for global order. In addition to undermining the progress that has been made in rebuilding Bosnia, it threatens the 14 other U.N. peacekeeping operations that have been deployed from East Timor to Africa. Later this month, the peacekeeping mandates in Lebanon, Georgia and the Western Sahara expire.
In an unusually blunt letter to U.S. Secretary of State Colin Powell, U.N. Secretary General Kofi Annan warned that “the whole system of U.N. peacekeeping operations is being put at risk” by Washington’s single-minded pursuit of immunity.
Mr. Annan pointed out that no member of a U.N. peacekeeping mission has been accused of war crimes and that the U.S. position amounts to amending the court statute’s after it has been formed.
The U.S. worries that American personnel would be the targets of frivolous or politically motivated prosecutions. The charge is understandable only in theoretical terms. In addition to Mr. Annan’s point, the ICC only has jurisdiction when a country refuses to prosecute its own people. (That statute was crafted in an attempt to allay precisely those U.S. fears.) It would be difficult, if not impossible, for the court to claim that the U.S. has shown the requisite failure of its judicial institutions for the ICC to assert jurisdiction.
The real rub is Washington’s hostility to any institution that infringes upon its sovereignty. In the simplest terms, the U.S. wants to claim that it is above the law. That may appeal to patriots in the U.S., but it is bad policy. Washington daily demands that other nations hew to international norms and standards — be it in the fight against international terrorism, the proliferation of weapons of mass destruction, or even more mundane issues such as whaling rights — and rightly claims that the world would be a better place if they were respected.
The U.S. cannot demand their adherence to those norms and then simultaneously assert that it is free from those same constraints. International law must bind all nations or it will bind none. The irony is that international law is a low-cost way of ensuring the furtherance of U.S. aims and objectives. Few nations have played such a fundamental role in the construction of the postwar order. It is for good reason that we talk about the “Washington consensus” when discussing the prevailing international policy framework.
American exceptionalism not only undermines the legal framework that Washington has worked so hard to build — and which reflects in large measure U.S. values and goals — but it also erodes the good will that the U.S. has developed during the last half century. Few policies seem as short-sighted or destructive of the U.S. national interest. Yet that does not seem to be sufficient rationale to get Washington to change its mind.
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