Bilateral Immunity Agreement
The ASPA, especially as amended in 2005, authorizes the president to cut off military and economic assistance to a country unless it signs a "Bilateral Immunity Agreement" with the U.S. A BIA obligates a country NOT to hand over American nationals to the ICC even if that country has signed and ratified the Treaty of Rome.
In the eyes of most ICC countries, BIAs are violations of the Treaty of Rome. Despite American bullying, 54 countries have refused to sign BIAs, judging that violating their treaty obligations is worse than losing American assistance.
Why is the Bush administration trying to undermine the ICC? It claims that the ICC puts Americans serving abroad at risk from politically motivated charges brought by governments hostile to the U.S.
This claim is groundless. First of all, the ICC claims jurisdiction only in those cases where a government is unable or unwilling to investigate the charges brought against one of its citizens. A principal function of the ICC is to serve as a court of last resort when war crimes are committed by nationals of a country with a broken or inadequate legal system.
Moreover, if a charge is brought against an American soldier, for instance, and the Army's preliminary investigation concludes that there is insufficient evidence for the charge, this conclusion would be accepted by the ICC. If the U.S. were to participate in the ICC, it (like any other subscribing country) would have the option to withdraw if the court were to engage in biased proceedings.
Darfur and the ICC
The U.S. has been vocal in its denunciations of the genocidal violence in the Darfur region of Sudan. Despite its hostility to the ICC, the U.S. did not veto a recent U. N. Security Council resolution calling on the ICC to investigate the situation there. Darfur is a perfect example of ongoing crimes against humanity that only an international tribunal such as the ICC can properly address.
The complaints of the Bush administration against the ICC are not only baseless, but also inconsistent with past American foreign policy. Throughout the violence-ridden 20th century, the U.S. was a leading advocate for the idea of an international tribunal enforcing laws that rest on our common humanity and rationality rather than on the legal code of a particular nation. For example, the U.S. was a principal architect of the International Military Tribunal (Nuremberg, 1945-46), which convicted many Nazi leaders and sentenced 12 of them to death.
One possible explanation for the Bush administration's hostility to the ICC may be the fear that some of its prominent members, including Bush himself, could be the target of investigations by the court. Even though American judicial institutions could address such charges, thereby sparing prominent American officials from appearing in an international court, the airing of such charges would be a national embarrassment.
What sorts of charges could be brought against Bush and company? We invaded Iraq neither in self-defense nor in the face of an imminent attack, and the invasion was not authorized by the U.N. Therefore, Bush, Cheney and Rumsfeld could be accused of waging a war of aggression against Iraq (and thereby causing the deaths of as many as 700,000 noncombatants).
The Nuremberg Tribunal called a war of aggression "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
Brian Cooney is the Stodghill Professor of Philosophy at Centre College.