The Presidency Is Above the Law

by Jim Lobe

The willingness of the administration of U.S. President George W. Bush to show greater deference to the United Nations and international law will be severely tested this week as it tries to persuade the Security Council to extend its exemption of U.S. troops serving in peacekeeping operations from the jurisdiction the new International Criminal Court (ICC) for another year.

To prevail, Washington must secure at least nine votes from the 15-member Council, but indications so far are that it is likely to fall short of that goal. In the past, the administration has threatened to veto UN peacekeeping operations if it does not get its way on the issue.

Despite widespread unhappiness with the resolution, which is vehemently opposed by international human rights groups who say that the exemption violates international law and undermines the global struggle to end impunity for the most serious human rights abuses, it was considered likely to be approved until the photographs of the abuse of Iraqi detainees at Abu Ghraib prison in Iraq became public.

Subsequent revelations of more widespread abuses, as well as high-level administration policy memos that appeared to sanction torture, have greatly bolstered opposition to the resolution, provoking UN Secretary-General Kofi Annan himself to criticize it more harshly than ever before.

"For the past two years, I have spoken quite strongly against the exemption, and I think it would be unfortunate for one to press for such an exemption, given the prisoner abuse in Iraq," he told reporters last week before privately briefing the Security Council on his views.

"Given the recent revelations from Abu Ghraib prison," said Richard Dicker, who follows the international justice issues for Human Rights Watch, "the U.S. government has picked a hell of a moment to ask for special treatment on war crimes."

Debate on Washington's request, which appears to have the support of Angola, Britain, the Philippines, and Russia, is expected to begin this week, probably Thursday. To date, however, Benin, Brazil, Chile, China, France, Germany, and Spain have indicated they intend to abstain.

Seven abstentions would kill the resolution.

Romania has said it is prepared to abstain unless its vote is responsible for defeating the U.S. resolution, according to the Washington Post, while Algeria and Pakistan have not yet tipped their hands, although the latter is considered more likely to side with Washington.

The vote, which is almost certain to take place before July 1 when the current resolution lapses, comes at a particularly sensitive time. In the wake of serious setbacks to the U.S. occupation in Iraq, Bush signaled a more conciliatory approach toward his international critics last month in agreeing to a Council resolution that vested more authority in Iraqi government that is supposed to gain "sovereignty" over the country July 1 than Washington had initially wanted.

Bush's willingness to compromise in order to get UN backing for the continued U.S. presence in Iraq was interpreted by some as a shift from the strong unilateralism pursued by Bush since the 9/11 attacks on New York and the Pentagon to a more multilateral approach. But Washington's push for extending the ICC exemption will severely test that thesis.

The proposed resolution prohibits the ICC, which formally opened for business one year ago in The Hague, the Netherlands, from investigating or prosecuting any current or former official or personnel from any country that has not ratified the Rome Statute, the international treaty that created the ICC, for acts committed by them during their participation in a mission authorized by the UN.

Under the treaty, the ICC has jurisdiction to prosecute cases of genocide, war crimes, and crimes against humanity in situations where the country that should be responsible for doing so is either unable or unwilling to pursue prosecutions on its own.

ICC supporters have long made the argument that Washington has nothing to fear from the new tribunal so long as the U.S. government is willing to investigate and prosecute such crimes as it says it is currently doing in Abu Ghraib cases and several others that have since come to light.

But the Bush administration insists that the ICC threatens U.S. sovereignty. They also argue that, given Washington's military predominance and the unique responsibilities for maintaining international peace that go with it, U.S. peacekeepers were particularly vulnerable to politically-inspired prosecutions by the ICC.

Former President Bill Clinton signed the Statute just before Bush's inauguration, but in May, 2002, the administration formally renounced Clinton's signature and launched a campaign to persuade as many countries as possible – about 80 to date – to sign bilateral agreements with Washington forbidding them from transferring any U.S. national in their custody to the ICC.

The administration has also cut off military assistance to about three dozen countries that so far have refused to sign such an agreement. Ninety-four countries, including virtually of Europe and most of the Caribbean, Latin America, and a substantial number of African states, have ratified the Statute.

At the same time, it launched its effort to secure an exemption from the Security Council. In 2002, the Security Council reluctantly went along after Washington threatened not only to withdraw all U.S. personnel from UN peacekeeping missions, but also to veto the extension of existing missions or the creation of new ones.

June 22, 2004

Jim Lobe is Inter Press Service's correspondent in Washington, DC.

Copyright © 2004 One World

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