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May 9, 2002
Courting Disaster

President Bush’s unprecedented “unsigning” of the International Criminal Court treaty will not stop the court’s creation in July. However, it is a wrong-headed repudiation of international cooperation and the rule of law that symbolizes a fundamental injustice in the “new world order.”

Despite rhetorical support for human rights, the United States—even under Clinton—was hostile toward creating such a court, which would both pressure national judicial systems to prosecute individuals for genocide, crimes against humanity and serious war crimes and provide a new international body to deal with these universally condemned atrocities. A ratifying country, the U.N. Security Council or an elected prosecutor will be able to start an investigation with the approval of a pretrial chamber of judges in the event that the government of a suspected war criminal willfully obstructs or is incapable of conducting an investigation on its own.

U.S. participation in negotiations strengthened aspects of the treaty, such as protections of due process, but now the court will evolve without U.S. influence. Worse, if the Senate approves the House-passed American Service Members Protection Act, Congress would prohibit any U.S. cooperation with the court, authorize the president to use any means necessary to free U.S. personnel detained by the court, and punish governments that ratify the treaty.

The United States claims to be concerned about “politically motivated” trials of Americans by an “unaccountable” international body. Both legally (there are multiple safeguards that would guarantee the United States could investigate its own personnel) and politically (the influence of the United States and its allies would make it unlikely for a prosecutor to press charges), Washington has little to fear. In any case, under current international law, any country could prosecute Americans for war crimes in their own national courts, even without an International Criminal Court.

Although the court is an important institutional step beyond the ad-hoc tribunals for Yugoslavia and Rwanda, there’s more risk of it being too weak to do the job rather than its being too strong. U.S. rejection of the court is thus mainly a symbolic statement that America is not accountable to anyone.

Bush’s destructive assertion of unilateral power and rejection of international agreements, from the Kyoto accords to the Anti-Ballistic Missile treaty, reflects what John B. Judis has identified as the Hobbesian mentality of an administration that sees the United States as fighting against a hostile and unreliable world. Yet even the Clinton administration, which was more amenable to multilateralism and treaties, saw the United States as an especially privileged and powerful country, “the indispensable nation,” in former Secretary of State Madeleine Albright’s words, that must be free to enforce its will.

Protecting U.S. sovereignty is not the question. International agreements are both an exercise of sovereignty and a surrender of some independence for a greater good. But in practice, powerful nations always have more sovereignty. Bush wants the United States to serve as the world’s investigator, policeman, prosecutor, judge and executioner. This is an imperial ideal, not an assertion of sovereignty. Yet when it comes to globalization, Bush happily subordinates U.S. sovereignty to multinational corporations and global financial markets—and is clamoring for “fast track” authority to further weaken national sovereignty over commerce and culture.

The real issue is popular sovereignty, which relies on both democracy and human rights. Nation-states are still important as means for people to exercise control over their lives, but—starting with his election—Bush stands opposed at every turn to popular sovereignty. The war on terrorism has become a cover for greater secrecy and repression of civil liberties, as well as an aggressive, unilateralist foreign policy. The skewed tax cuts deprived the government of money needed for health care, education and countless other needs.

The International Criminal Court could give life to the growing commitment to securing human rights and popular sovereignty through international cooperation. It is in the interest of the people of the United States to support such developments. But the court is not part of Bush’s game plan for wielding global power without constraint.


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