11 January 2004

Kenya: America And the International Criminal Court


Nairobi — On July 17, 1998, a total of 120 countries adopted the Rome Statute of the International Criminal Court, a permanent tribunal that will investigate and prosecute individuals accused of crimes against humanity, genocide, and war crimes. The United States led seven countries - including Israel, China, and Iraq - in voting against the International Criminal Court. Since then, the US has engaged in a wicked campaign to undermine and destroy the court.

What is the International Criminal Court and why is the US, the sole superpower, intent on dismantling it? There is no doubt that the 20th century was one of the bloodiest, with states committing the most abominable atrocities ever known to humanity. While the century closed true to form, it saw the creation of the long elusive international criminal tribunal, a body that may hold accountable the most egregious of human rights violators.

An overwhelming number of states have supported the creation of the International Criminal Court. By December 31, 2000, a super majority of 139 states had signed the treaty. About 66 countries - six more than the number required for establishing the court - had ratified the treaty by April 11, 2003. The number of ratifications had risen to 92 by the end of November 2003. Sadly, Kenya has not ratified the court treaty, although 22 African countries, including Uganda and Tanzania, are party to it. The tribunal came into force on July 1, 2002, and its 18 judges were elected in February 2003, and took their oaths in March.

The court is precedent setting because never before has there been a permanent international criminal court. The ad hoc Yugoslav and Rwanda international criminal tribunals - or even the war crimes Sierra Leone Special Court - would have been unnecessary had the court been in existence. Article 5 of the Rome Statute of the court grants the court jurisdiction over the crimes of genocide, war crimes, crimes against humanity, and crimes of aggression. So, why would the US, which ostensibly went to war against Iraq to prevent these crimes, stubbornly oppose a treaty that seeks to punish the same atrocities?

The central purposes of the court, which impose individual criminal responsibility for war crimes, genocide, and crimes against humanity, must be a cause of worry for any imperial power. The court does not permit soldiers responsible for these offences to hide behind the protection of their armed services or states. Any soldier, or combatant, who commits these atrocities, even under the direction of his superior, is personally and individually culpable for them. The purpose of the court is to make individual soldiers - boots, as they call them in the US - fighting machines with a conscience. In other words, the prosecution of war must be governed by clearly defined rules and limits - dos and don'ts - or it becomes an international crime.

This means that the rape of women and the pillage and killing of civilians, or the mistreatment of prisoners of war, are not permitted. But war is a dirty game, and it is virtually certain that troops cannot avoid committing these atrocities. Reports by human rights groups indicate that American and coalition forces have committed some of these atrocities in Afghanistan and Iraq. Under the court treaty, American troops could be prosecuted for such abominations. It is this fear - and it alone - that drove the Clinton Administration to oppose the court. The Clinton Administration only signed - but did not ratify - the court treaty after it won concessions that would make it somewhat difficult for US troops to be prosecuted.

Strangely, the concessions did nothing to mollify both the Clinton and the Bush administrations. President Bush ordered on May 6, 2003 that the US withdraw its signature on the court treaty. "Unsigning" a treaty is a move that is unprecedented in international law and, in effect, signals that the US is going to war with the court. Pierre-Richard Prosper, the American ambassador-at-large for War Crimes Issues, has led a concerted and comprehensive US diplomatic effort to undermine and hollow out the court. Mr Prosper's campaign is so brazen and arrogant that it is sickening.

What are the specifics of this American blitzkrieg against the court? US occupying or peacekeeping troops cause the most worry. First, the US negotiated a UN Security Council resolution to exempt US peacekeeping troops from the reach of the court. When that exemption was denied for peacekeepers in East Timor, the Bush Administration vetoed an extension of the UN peacekeeping operation in Bosnia-Herzegovina unless the UN Security granted a complete exemption. Although the US failed to win a blanket exemption, the Security Council caved in, and approved a limited one-year exemption for US personnel in UN peacekeeping or other UN authorised missions.

Secondly, the Bush Administration has brought many states, including Kenya, under intense pressure to enter into bilateral impunity agreements in which they undertake never to surrender American nationals to the court for trial on genocide, war crimes, and crimes against humanity. These impunity or so-called Article 98 agreements seek to place Americans above the rule of law and permit them to commit the most heinous crimes without accountability. It is particularly hypocritical that the impunity agreements are based on an impermissible American misinterpretation and distortion of Article 98 of the court treaty.

Finally, the American Congress has given President Bush legal and moral authority in his wrongheaded pursuit of the impunity agreements. The US Congress passed - and President Bush signed into law on August 3, 2003 - the American Servicemember's Protection Act, which is a direct attack on the court. The Act would be funny were it not so tragic and sinister as a piece of legislation. The Act literally declares war on the court and tells the rest of the world to go to hell.

The Act's principal provisions shock the human conscience. First, it prohibits any US co-operation with the court. In a very bizarre clause, it authorises a US "invasion of The Hague," the seat of the court, to free US and certain other allied personnel detained or imprisoned by the court. Here, the American President is authorised to "use all means necessary and appropriate" to free US personnel. What will the US do? Bomb The Hague? Significantly, the Act provides for the punishment of states that ratify the court - and refuse to enter into the impunity agreements -by denying them military aid. Kenya is caught in this bind. Finally, the law prohibits the participation of US personnel in peacekeeping operations unless they are guaranteed immunity from the court. A waiver, which renders the Act's application selective, allows the President to override the effects of its provisions when "in the national interest".

Let me set a few matters straight. The US is wrong in its interpretation - manipulation - of Article 98(2) on which it has relied to force states to accept the bilateral impunity agreements. That article, which provides that the court may not proceed with a request for the surrender of a suspect that would require the state to act inconsistently with its obligations under international agreements, was included in the treaty to facilitate an orderly and rational process for dealing with suspects among states co-operating with the court. The provision was not intended to permit states - such as the US - which have refused to sign or ratify the court treaty to negotiate impunity agreements to exempt their citizens from the court or to undermine it.

But it is not only the US that is to blame for these bilateral impunity agreements. There would be no wolves if there were no sheep. Countries that capitulate and accept the impunity agreements cannot escape responsibility. Nor should they prostitute their sovereignty and national pride. Kenya must totally reject such an agreement. It is illegal under international law for a state that ratifies the court treaty to sign any agreement that provides immunity from court prosecution with a state that has repudiated or has refused to sign or ratify the court treaty.

According to Article 18 of the Vienna Convention on the Law of Treaties, states that have signed or ratified a treaty are "obliged to refrain from acts which would defeat the object and purpose" of the treaty. It is an established principle of international law that a state cannot accept a treaty and then attack its guts. The turning over of suspects for trial by the court constitutes the "guts" of the treaty. That is why Kenya and other states must not permit the US to force them to violate international law. Can the US, for example, dare Germany, France, or the UK to sign the impunity agreements? I do no think so. Kenya must say no.

Makau Mutua is Professor of Law at the State University of New York at Buffalo and Chair of the Kenya Human Rights Commission. He was the co-chair of the 2000 Annual Meeting of the American Society of International Law.

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