| |
| Kissinger Watch #10 - | |
| |
| |
| |
| U.S. and global criminal court: How much leeway for Washington? | |
| |
| |
| Lee Dembart International Herald Tribune, Wednesday, September 25, 2002 PARIS The outcome of the dispute between the United States and the European Union over the International Criminal Court hinges on two key issues, one that appears close to resolution and one that remains a problem, according to people on both sides of the debate. The apparently easier question is whether the Europeans will accept American assurances that people accused of heinous crimes against humanity will be aggressively prosecuted in U.S. courts, according to an EU diplomat familiar with the situation. The foreign ministers of the 15 EU countries met recently in New York with Secretary of State Colin Powell, and the Europeans were satisfied that they shared a "common approach" with Washington, this person said. Powell agreed that "no one having committed crimes covered by the jurisdiction of the court should live in impunity," the diplomat said. No agreement has been reached, and, in fact, the EU will not adopt a formal position until its foreign ministers next meet. But it appears that in the end, the Europeans may be willing to trust the American legal system and to allow people accused of heinous crimes to be extradited to the United States rather than to the Hague and to forgo oversight by the International Criminal Court, which the United States adamantly opposes. The main sticking point now is the scope of the bilateral agreements that the United States is asking individual countries to sign regarding extradition of potential criminal defendants. The Europeans say that the bilateral agreements, which are permitted under the Rome Statute that created the court, should cover only U.S. forces sent overseas. The Americans want the agreements to cover everyone, including key military commanders and civilian leaders at home. "If the Iraqis want to haul Colin Powell or Donald Rumsfeld before the ICC 10 years from now, we are not going to allow it," a State Department official closely familiar with the situation said in an interview. "There is too much room for mischief in this court." In the forefront of the Americans' minds are the continuing assertions from various quarters that Henry Kissinger, the former secretary of state, should be tried as a war criminal for his alleged actions in Indochina, Chile, Indonesia and Cyprus, all of which his spokesmen have dismissed out of hand. The International Criminal Court has no retroactive jurisdiction, so Kissinger could not be charged for past actions before that tribunal no matter what. But Washington fears that current or future American leaders could face similar kinds of accusations, and that fear is at the heart of its opposition to the court. "The issue is one that directly affects individual Americans and quite possibly the highest decision-makers of our country, who could be hauled before this court and be subject to criminal penalties," said John Bolton, the undersecretary of state for arms control and international security, who has been a leader of U.S. opposition to the court. Suppose the court's prosecutor decided at some future time that the U.S. bombing of Afghanistan constituted a war crime. And suppose further that George W. Bush, by then a former president, happened to set foot in Spain. If Spain had signed a bilateral agreement with the United States, it would extradite Bush back to the United States rather than to the International Criminal Court. So, while the trans-Atlantic allies agree that people who commit war crimes or other crimes against humanity should be prosecuted, they do not yet agree on how broadly such accusations should apply and on whether the international legal mechanisms set up by the Rome Statute can be trusted. "There is a will on the EU side to try to find a solution that accommodates U.S. concerns as long as this can be done without compromising the integrity and the efficient functioning of the court," the EU diplomat said. "When you have close allies and allies that you wish to maintain a close relationship to," he said, referring to the United States, "then sometimes you are in a position of having to accommodate and take on board their political concerns because they are deep-felt. No one on the European side doubts that the concern is genuinely felt by the U.S. But I don't think anyone shares the U.S. interpretation of the situation." In Washington's view, the bilateral agreements it is seeking are explicitly permitted by Article 98 Paragraph 2 of the Rome Statute, which created the International Criminal Court in 1998. "What we're following is a process expressly contemplated by the Rome Statute," Bolton said in a recent interview. In fact, he said, during the debate in the UN Security Council in July over the future of peacekeepers in Bosnia, it was the European allies who suggested to the United States that it should pursue its goals by seeking Article 98 agreements. But the EU legal experts say that Paragraph 2 of Article 98 applies only to soldiers sent to foreign countries and that the United States is improperly trying to broaden it into blanket protection for all U.S. citizens. Other legal observers also say that the intention of Article 98 was simply to establish priorities among several governments that might have an interest in prosecuting a particular individual. . "The government of the suspect and the government on whose territory the crime took place both might want to pursue a crime," said Kenneth Roth, executive director of Human Rights Watch, which has strongly supported the court and opposes the American position. "What Article 98 says is: It's O.K. to have an agreement where the government of the suspect goes first." The fundamental U.S. opposition to the International Criminal Court is based on Washington's concerns that the crimes that could be prosecuted in the court are vaguely specified, which would allow considerable prosecutorial discretion and give insufficient protection to the rights of criminal defendants. For example, the Rome Statute allows prosecution for indiscriminate bombing of an entire city and also for disproportionate bombing, where the harm to nearby civilians is "clearly excessive" in relation to the military advantage. These can be subjective judgments that are open to second-guessing after the fact. Under current international legal standards, if the firebombing of Dresden during World War II and dropping atomic bombs on Hiroshima and Nagasaki happened today, they could be considered war crimes. Bolton of the State Department also said that the United States objected to the prosecutor in the international court being independent and not subject to democratic accountability, a situation that he described as "the independent counsel statute being written on a global scale." He said that "the United States has had extensive experience in this country with the institution of the independent counsel," which was created after Watergate and intentionally made independent so it would not be subject to political pressure. "After 20 years of experience with the independent counsel statute," he said, "by an overwhelming bipartisan consensus, we concluded that it was a bad idea." "The risk of the prosecutor in the ICC context is functionally the same," he said. "That is to say, a prosecutor without any supervision by somebody vested with democratic legitimacy." Roth of Human Rights Watch disputed that. "The ICC prosecutor is answerable to the most democratic body you can have," he said, "a global legislature in the form of the Assembly of State Parties," comprising the 79 governments that have ratified the Rome Statute and joined the court. "The prosecutor can be removed by a mere majority vote," he said. "You couldn't have a more accountable system." Bolton was asked why other democracies and America's closest allies, including Britain, did not share Washington's fears about the court. "Because they're not the world's only remaining superpower," he said. "The responsibilities we have and the attacks we receive, the politicized criticisms of our actions, leave us, perhaps, more aware of the risks." http://www.nytimes.com/2002/09/07/international/europe/07COUR.html?ex=1032399627&ei=1&en=db9caee7494106a9 | |
|
| FAIR USE NOTICE |
|
|
|
| This bulletin contains copyrighted material the use of which has not been specifically authorized by the copyright owner. We distribute this material without profit and believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C ¤ 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner. |
|
| back to top |
| ||
|
|
|
| ||
 | ||
|