The Presidency Is Above the Law
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.
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
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.
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.
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
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."
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
abstentions would kill the resolution.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Lobe is Inter Press Service's correspondent in Washington, DC.
© 2004 One World