The Bush Administration has shown open hostility to the International Criminal Court (ICC or “the Court”) for most of the past six years, but it has recently, and discreetly, started warming to the fledgling institution. This is a welcome development for proponents of international justice everywhere.

Based in The Hague, the ICC is the world’s first permanent, independent judicial body empowered to try individuals accused of genocide, war crimes, and crimes against humanity. The Court was established in 1998, under the Rome Statute of the International Criminal Court, which was signed by one hundred and thirty-eight countries, and has so far been ratified by one hundred.

From the outset, the Bush Administration opposed the existence of the Court, viewing it as an assault on national sovereignty. In 2002, John Bolton, then Undersecretary of State for Arms Control, sent a letter to U.N. Secretary General Kofi Annan, expressing the intention of the United States to withdraw its signature from the Rome Statute. Bolton was quoted saying it was the happiest moment of his career in government. From then on, it was clear that the United States wanted no part in the Court. And beyond merely rejecting the ICC, the Bush Administration pursued a policy of active opposition to it.

That opposition reached a hysterical level later in 2002, with the passage of the American Servicemembers’ Protection Act (ASPA), a law that was nicknamed the “Hague Invasion Act” because it permitted the United States to use military force to free Americans held at the ICC’s facilities in the Dutch city. Abroad, and especially among European Union states, the ASPA elicited strong negative reactions.

At the same time, the United States aggressively sought bilateral “Article 98 Agreements” with Rome Statute signatory states to prevent Americans from ever being handed over to the Court to face prosecution. Dozens of these agreements were signed, but some states, including Brazil, Costa Rica, Croatia, Ecuador, Kenya, Mali, Malta, Mexico, Namibia, Niger, Paraguay, Peru, Samoa, Serbia, South Africa, Tanzania, Uruguay and others, refused to sign these agreements. For many of the unwilling states, refusing the U.S. Government’s demand for blanket immunity was a matter of national self-respect and an unambiguous rejection of what has become known, in the most negative sense of the term, as American exceptionalism —America’s constant, expressed desire to be the exception to the rule.
Costa Rican Foreign Minister Roberto Tovar poignantly reflected this sentiment when he made the following statement in September, 2005: “Signing would go against the multilateral order and against the principles of defense of human rights. We may be poor, but we have our dignity.” In retaliation, the United States suspended military aid to Costa Rica and the other states.

Then, something changed dramatically. When the UN Security Council voted, in late 2005, on whether or not to refer the ongoing genocide in Sudan’s Darfur region to the ICC, the United States abstained from the vote, thus letting it pass. At the time, calls from the American public (especially college students!) to take substantive actions to stop the killings in Darfur were reaching a roar. So, for the first time, the United States acknowledged and tacitly accepted the existence and usefulness of the Court. This move was applauded by human rights activists and ICC supporters in the United States and abroad.

However, the biggest change in the US Government’s approach to the ICC came on October 2nd of this year, when President Bush announced that he would resume military aid to ICC member states that had earlier refused to sign Article 98 agreements. The announcement was made with little fanfare, and received barely modest press coverage, but it marked a small, hopeful step in a constructive direction for US policy toward the Court, and was welcomed by the international community. It is highly improbable that the United States will become a state party to the ICC under the Bush Administration, but that possibility should not be ruled out —and should indeed be encouraged—for the next administration.

The European states have shown that constructive membership in international institutions is mutually beneficial: the member state gains from the norms, standards, and services of the institution, and the institution grows better and stronger with the support of the member state. In more concrete terms, the bloody travesty that the trial of Saddam Hussein has become is a macabre example of why impartial, out-of-state international criminal courts are necessary.

Everyone is entitled to her or his opinion (at least last time I checked), but, in an increasingly interconnected world, it benefits no one for the United States to stand on the wrong side of the rule of law.

The “fears,” (potential for politically motivated trials, an unrestrained chief prosecutor, a court dominated by America’s enemies, etc) raised by ICC detractors in the US Congress and State Department are completely and utterly without legal basis. They are factually untrue (in other words, they are lies), and can readily be disproved. Yet, they are still propagated because they serve as a cover for a deep-felt disdain for multilateral institutions, and international law.

Only better education will provide Americans with the knowledge they need and deserve to develop informed opinions about US foreign policy on important international issues. Organizations like Americans for Informed Democracy can play an essential role in providing this education to the next generation of voters, activists, and policy-makers.

-Una Hardester, Senior Political Analyst

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