ICC offers promise--without the United States.

On September 7, 2003, President George W. Bush issued an address calling for United Nations troops and financial assistance for rebuilding Iraq. He stated, "Members of the United Nations now have an opportunity, and the responsibility, to assume a broader role in assuring that Iraq becomes a free and democratic nation." Yet the Bush administration, in attacking Iraq without UN support and removing itself from the UN's International Criminal Court (ICC), can hardly expect the UN to now accept "responsibility"--let alone give support--to its foreign policy decisions.

The ICC has recently come into full operation with the selection of its chief prosecutor, Oscar Moreno-Ocampo of Argentina. Most of the 199 nations of the UN are truly celebrating this long-sought accomplishment. Of the 134 signatories of the Rome statute, 92 have already ratified their commitment to the ICC. But in May 2002 the United States surprised the world by doing something never before done in UN history: it unsigned a document, backing out of its official commitment to the court. This is especially surprising because the United States purports to be a champion of international law and had long been instrumental in the vision of and preparation for the ICC. The United States was an initiator of the Nuremburg trials and was instrumental in the tribunals for Rwanda, Sierra Leone, and Yugoslavia.

But in July 1998, while actively engaged in negotiations in Rome, Italy, for the creation of the ICC, the United States wasn't in agreement with many of the member states' decisions. The United States voted unsuccessfully for oversight and control of the ICC by the UN Security Council; it further voted unsuccessfully against an independent prosecutor. It also failed in its insistence on capital punishment instead of life imprisonment only and disagreed with the emphasis on restitution and monetary compensation that most of the other nations were advocating. Ambassador David Scheffer, the U.S. representative to this historic meeting, left Rome refusing to sign the document.

In reporting to the U.S. House Foreign Relations Committee, Scheffer stated that he feared the document would interfere with the United States meeting its military obligations around the world and that U.S. service personnel might be vulnerable, in case of political manipulation, to prosecution under ICC war crimes charges.

No further action was taken for two years but before leaving office, former President Bill Clinton signed the Rome Treaty just before its deadline of December 31, 2000. Surely the thinking was that more influence for change might be brought to bear as a member nation rather than as an outsider. But the incoming Bush administration didn't agree and fear of this new international body prevailed in its foreign policy rationale.

Not only did the United States back out of its commitment, but in a move that undermined the intent of the ICC, it set about trying to coerce bilateral immunity agreements with as many nations as possible, requiring that they not extradite U.S. service personnel in case they were charged by the ICC. The United States has even punished reluctant nations by withholding previously promised military assistance. As of the summer of 2003 thirty-six bilateral immunity agreements have been signed hut not necessarily ratified by those nations; fifteen of them are ICC participants and twenty-one are non-ICC participants. The United States was so concerned about its vulnerability that it even sought and obtained from the UN Security Council special exemption for U.S. peacekeepers from possible ICC prosecution.

The United States has good reason to fear prosecution by the ICC because, as soon as the court opened its doors for business on July 1, 2002, it began to receive accusations against the United States. Individuals and groups opposed to U.S. policies and unable to influence change within the administration see the court as a way of bringing world attention to these policies, seeking judgment from what they would like to promote as a higher jurisdiction.

Indeed, most of the nations of the UN, as well as millions of anti-war protesters the world over, preferred to see the problems of Iraq, its alleged weapons of mass destruction, and its asserted non-compliance with UN inspectors treated under existing international laws and insisted upon giving the UN time to resolve these issues without violence. This was before the earthshaking "shock and awe" of the United States' own illegal attack on Iraq in March 2003. It is ironic and shameful that for all of the United States' previous advocacy of respect for international law--even seen as a model for newly emerging democratic nations--it is now in the position of being seen as a lawless aggressor nation and sadly targeted for retaliation as such.

Another unintended consequence of U.S. foreign policy and its undercutting and exploitation of the UN is that it has caused the UN to be targeted as well, as witnessed in late August 2003 and again in the September bombing of its headquarters in Baghdad. The UN's prolonged sanctions against Iraq at the behest of the United States, causing some to regard the UN as almost a tool of the United States, is certainly not consistent with the UN's present stated mission of peaceful intent and of its humanitarian efforts to help return Iraq to normalcy.

Although the United States wishes to remain in charge militarily, it is finding itself more and more isolated as far as its coalition is concerned and finding also that support and money for its stated mission to promote democracy in Iraq is dwindling. In addition to the UN presence, which has been shown to need its very own protection force, the United States is now soliciting even more international support. It needs help to carry out its heavy responsibilities for having caused such devastation to the Iraqi people; their health and health care system; the nation's environment, infrastructure, and economy; and the Iraqi peoples' ability to govern and police themselves. The United States created idealistic but unreasonable expectations; it is now in a very awkward and unsustainable position.

U.S. citizens have usually thought of themselves as the good guys but are often oblivious to U.S. foreign policy as seen by the rest of the world. They are the ones in the white hats, clearly identified as heroes, who come to others' rescue; they are supposed to save those who are in danger of disaster. Doubt is beginning to creep into the public discourse because of the Bush administration's disregard for international law. Respecting the UN and the ICC is the only way that confidence can be restored.

U.S. citizens have generated interesting responses despite their administration's reluctance to trust the ICC. Judges in some U.S. court cases have begun to cite ICC standards in their domestic decisions. Defense lawyers practicing at the Hague's Yugoslav tribunals are seriously objecting to a precedent-setting requirement that they now register with the U.S. Treasury Department. This seems to be an attempt to control and prohibit U.S. lawyers from defending clients at the Hague and to locate and freeze the funds from which they might be paid. Another action intended to generate support for the ICC is the establishment of a Victim's Trust Fund whereby citizens are asked to send $5 each to their representatives in Congress to be set aside as compensation for victims of war crimes. Clearly this shames Congress for its reluctance to take action in the matter of joining the ICC.

There seems to be adequate support for the ICC from all around the world. Celebrations commemorating July 17, 2003 (the fifth anniversary of the Rome statute), as World Day for International Justice were observed in regions across the globe. The Organization of American States issued an extensive resolution endorsing and welcoming the ICC into force.

The long awaited ICC won't go unused or sit idle for a moment; even before the offices of registrar and chief prosecutor were established, messages and complaints began to pour in. Reports of atrocities and violations of human rights flooded the court, clearly indicating that populations around the world were suffering great abuse and desperately needed to seek justice by appealing to the ICC.

Of the first 499 communications from 66 countries that were received by the new court, more than 100 of them were allegations against the United States in connection with the war in Iraq. Seventy of these appeals had originated in the United States itself. Some accusations were related to the war on terrorism and the U.S. treatment of civilian populations in Afghanistan. Most were accusations about civilian populations being targeted by the United States in its invasion of Iraq. Many cited the use of cluster bombs and depleted uranium, both of which are immediate, as well as long-term, deadly threats to civilian populations. The use of fuel-air bombs that create giant fireballs over nonmilitary targets was protested. Torture and inhumane treatment of prisoners was alleged.

After review by Moreno-Ocampo, most of the complaints have been rejected, as they were found to be outside of the court's jurisdiction. Thirty-eight of the complaints against the United States accused it of the crime of aggression but, until the term is defined at a future assembly of states parties, the crime of aggression doesn't yet fall within the jurisdiction of the court. Of the accusations against the United States, sixteen related directly to acts allegedly committed by U.S. troops in Iraq but neither Iraq nor the United States had become a party to the Rome statute, so the court has no jurisdiction over either of them at this time.

On the other hand, similar military actions during the war in Iraq by members of the coalition forces who are states parties to the statute will now be under review by the court to determine the ability or willingness of those national authorities to treat, within their own judicial systems, these accusations of crimes committed. This is one of the important criteria for determining whether the ICC has jurisdiction and an obligation to become involved. The United Kingdom is accused of having allowed U.S. bombers to use its air bases to launch raids that killed civilians. Is the United Kingdom likely to question the use of its air bases when this commitment was made by its own authorities in charge of joining the coalition? Hardly. What then? Is the ICC going to charge the United Kingdom with war crimes? This scenario remains to be developed as the court wades into uncharted territory.

As the new court gears up to grapple with these new situations and complex decisions, it is being hailed and celebrated by nations, groups, and individuals as a new hope for a world that may at some future time become peaceful and nonviolent.

This is truly a powerful expectation, considering that the entire recorded global history is dotted with intermittent war and atrocities. And for most of this history the perpetrators of crimes against humanity literally got away with murder, often flaunting their impunity. Now, at last, they will be punished, it is only a shame that the United States refuses to be a part of it.

Beth K. Lamont, along with Mary Beaty is a nongovernmental organization representative to the UN for the American Humanist Association and a member of the newly formed Council for Ethics Based Organizations. This article has been adapted from her report based on ICC meetings attended and data gathered from "NGO Coalition for the ICC" sources.