The International Criminal Court:
The Only Answer To
American Abuse In Iraq
By Renad Haj Yahya
14 July 2004
Electronic Iraq
Temporary premises of the International Criminal Court in The Hague.
The ongoing reports about war crimes in Iraq emphasize more than ever that the US must ratify the 1998 Rome Statute which established the International Criminal Court. Those reported crimes would have been amongst the crimes that the court would have prosecuted and punished since they are considered to be war crimes according to the Court statute.1The US rejection of the International Criminal Court encourages a culture of impunity for human rights violations and war crimes among the US troops but more importantly proves that the US claims about promoting international democracy are empty of content or real intentions. The US opposition to the court is one of the strongest oppositions to multilateral treaties that had been ratified in the last few decades2.
The US claimed that the court violates basic principles of international law such as sovereign equality and democracy. However, despite the US opposition and the painstakingly efforts of the US delegation to Rome in 1998 the Court Statute was adopted by 120 states and the court started working in July 2001. If Iraq was a party to the International Criminal Court, the Court would have assumed jurisdiction over the crimes committed in Iraq nowadays. This is due to the fact that the Court can assume both territorial jurisdiction and national jurisdiction. The former is assuming jurisdiction over the crime committed in the territory of the state party and in that case the state party would have been Iraq; the later is assuming jurisdiction over the crime committed by the national of the state party regardless of the place it was committed at and in that case the US would have to be party for the court to assume jurisdiction over the crimes in question. The US, by not ratifying the Court Treaty avoided prosecution of cases such as Abu Graib prison, where the reported crimes are considered to be war crimes under the Court jurisdiction.The US claimed among other things that it would bring peace to the Iraqi people through their liberation from the rouge regime of Saddam Hussein. It is well established that respect for human rights is the corner stone for democratization and civilization. Again the experience with the International Criminal Court is the ultimate evidence that the US claims are merely a lobbying tool for it to get legitimacy for the war.
The International Criminal Court represents the dream of every liberal theorist and believer in human rights. It guarantees that abuses of power no longer enjoy impunity. Through a process of international criminal justice, which is not threatened by the classic claims of sovereignty or sovereign immunity of heads of states, criminals would be brought to the justice making machinery of the international legal order. Naturally the man in the street would expect the US, a liberal democracy, to be mutually connected with the Court and even more, he would expect it to act actively to ensure its ratification by all world states as it did in other instances where its interests where at stick3.
In contrast to this rational expectation the US opposition did not end with solely remaining outside the realm of the Court. Instead the US worked actively to ensure that American nationals won't arrive to the court no matter how grave their crimes were when committing a crime on the soil of a state party. It had done so by signing non extradition bilateral agreements and by negotiating and adopting Security Council Resolution 1422, which exempts from the jurisdiction of the Court the nationals of the UN forces who are nationals of non contracting party to the Court. Bearing in mind the recent Security Council Resolution 1546 which provides that the Multinational force will provide security to the UN forces, it may mean that the US troops will continue to enjoy impunity from international criminal justice.
The International Criminal Court seems to provide cosmopolitan notions of international democracy to the international justice making system. It suggests that justice can be made quickly and independently. Needless of waiting to the Security Council to act, the Court can assume jurisdiction over the crimes in question and punish the perpetrators. The gates of the Court are open to individuals and NGO's and not merely to states.
Therefore the American rejection of the Court proves that the American understanding of democracy is different. The democracy in the eyes of the American administration is the democracy that does not threat the American hegemony. That is why the American promotion of democracy is only through regional state democracy which ends in the territorial boundaries of the state and which does not pose any real challenge to the American interests. Additionally, this promotion of democracy is not concerned with promoting American ideas abroad but with defending the interior democratic identity the US had long sought to establish, even through the so-called democratizing wars. Therefore, even if the war in Iraq is a democratizing war as the US claims, the Abu Graib scandals and the reports about the legalization of torture methods by the Pentagon and the CIA4 in contrast to the Prevention of Torture Convention and the International Convention for Political and Civil Rights to which the US is a party, prove that democratization ends where the US interest starts. If the US wants to prove that it wants to provide democracy for the Iraqis it has first to ratify the Court treaty, announce that all legalized torture reports and authorizations as illegal and respect all human rights international treaties in its dealing with Iraq occupation and not merely announcing that the occupation has ended.
Footnotes
The 1998 Rome Convention for the establishment of the International Criminal Court.But some argue that the opposition to the International Covenant for Social and Economic rights in 1966 was also very strong. The US then claimed that the convention violates the free markets basic principles by imposing a duty on states to direct its resources towards economic and social rights and allowing interference in the resources allocation of the governments.
The GATT treaty ( The General Agreement of Tariffs and Trade) - The US ensured the ratification of the treaty by Third World countries in order to ensure its business interests.
See the New York Times, 27/6/2004, Aides Say Memo Backed Coercion for Qaeda Cases.