U.S. Troops Continue Bosnia Mission, Despite ICC Concerns
By Gerry J. Gilmore
American Forces Press Service
WASHINGTON, July 2, 2002 U.S. troops will continue performing U.N. peacekeeping missions in Bosnia despite senior DoD officials' concerns about the lack of legal protections for American troops under the recently established International Criminal Court.
Established July 1, the ICC was formed to prosecute war criminals and dictators alleged to have committed genocide, war crimes and crimes against humanity. Some 138 countries signed on to create the organization, which is to be based in The Hague, the Netherlands.
However, the U.S. government won't ratify or join the ICC, senior DoD officials said today at a Pentagon briefing. They cited misgivings that the ICC doesn't contain sufficient legal protections for American service members, while implying its reach could also be improperly employed as a political weapon against America. The ICC currently has 74 member-countries.
"Our principal objections to the ICC treaty are that it subjects U.S. nationals - and in particular the risk is great for our armed forces - to prosecution by prosecutors in a court that are not accountable to any kind of authority that we could hold accountable as a country," said a senior DoD official at the briefing.
"The ICC treaty creates a situation where our people could be prosecuted for crimes that are defined by the parties to the treaty," he continued, "and nobody in our Congress would have a voice in the definition of those crimes.
"And yet Americans could be prosecuted criminally for violating these purported crimes."
Americans prosecuted under the ICC "would not be entitled to all of the protections that our Constitution affords" in criminal trials, the official pointed out.
The ICC could prosecute a U.S. service member for a crime, even if a U.S. military court martial has acquitted the service member for the same crime, the official noted.
The ICC treaty, the official said, claims to apply even to countries that aren't parties.
"This is really a radical - I would say an astonishing - innovation in international law, and a very unwelcome development, that a number of countries would arrogate to themselves the right to adopt a treaty and impose it on states that haven't signed on, that haven't become parties of the treaty," he said.
Such a legal concept "is a deviation from hundreds of years of international legal practice an innovation that violates the principles of sovereignty that have been basic to relations among states for centuries," the official said.
The U.S. Defense and State departments would seek to work through the U.N., and agreements with other countries, to mitigate any possible adverse effects of ICC policy to American troops, the senior official said.
At an earlier Pentagon briefing, Defense Secretary Donald H. Rumsfeld said the existence of the ICC "is a threat to civilian, military individuals from the United States of America, regardless of whether they're doing peacekeeping or war fighting."
Rumsfeld noted that the U.S. State Department is already working "with countries to enter into bilateral arrangements so that our forces in their countries" could not be extradited by the ICC.
"We have to begin to find ways - multilaterally and bilaterally - to get arranged so that our people are not subject to that court," Rumsfeld explained. "We know in Afghanistan people have lied and charged the Americans with killing innocent civilians when it did not happen.
"And, we know it was weeks before we got people on the ground and could verify that."
ICC prosecutors "have the potential for politicizing the process," Rumsfeld said. Asking countries "to extradite American men and women in uniform to the International Criminal Court for trial" could be seen by some as a method to deter the United States from deploying troops. That scenario "would be unhelpful to the world," he said.
"We are vulnerable during this period, starting yesterday, because we do not have those (immunity) arrangements in place," Rumsfeld continued. "It will take some time to do that.
"The language is being crafted now so that the Department of State and the appropriate people can work with other countries to see if we can find the appropriate ways to provide that sort of immunity for our forces," the defense secretary added.
However, "it would be inaccurate," Rumsfeld noted, to imagine that "the United States would necessarily withdraw from every engagement we have in the world between now and the time that that immunity is provided we have no plans to do that.
"We have forces in countries all over the globe; we have no intention of pulling back," Rumsfeld said.
The senior DoD official said he was confident that something could be worked out. Through diplomacy, he noted, "we can make people understand our position."