No higher form of hypocrisy

Why is the United States, not a signatory to the Rome Statute, defending the honor of the International Criminal Court?

Then US Ambassador to the UN, Susan Rice (center), official Samantha Power and President Barack Obama. Image: US Embassy New Delhi. Via Flickr CC.

Two weeks ago, Uganda’s President Museveni inaugurated his fourth decade in power. And as strange things happen at swearing-in ceremonies around the continent these days, this one was no exception. Officials from the US, Canada and Europe walked out of the ceremony when Museveni mocked the International Criminal Court (ICC), calling its officials “a bunch of useless people.”

To be sure, it must also have been quite uncomfortable for the western diplomats to share the stage with Sudan’s president Omar al Bashir, an ICC fugitive who is wanted for alleged crimes of genocide, war crimes and crimes against humanity. (We have previously written on the drama that accompanies Bashir on his travels here.)

But, what if the US diplomats walked out just because their European cousins did? This is a serious question, because, frankly, it’s hard to entertain the idea that the US could be offended by someone criticizing the ICC. Successive US administrations fought tooth and nail for the ICC not to see the light of the day as we know it, although it is true that the Obama administration is a bit friendlier to the Court than previous ones. But the fact remains that there are still laws and policies in Washington that are specifically designed to make the ICC’s work impossible, if it ever decided to go after US interests.

David Scheffer, the first US Ambassador-at-large for War Crimes – or “Ambassador for Hell” as some people called him – wrote a fascinating memoir in which he recounts, among other things, the US delegation’s attempt to tailor the ICC during the drafting of the Rome Statute in 1998.  As head of the US delegation in Rome, Scheffer wrote,

I struggled to avoid the train wreck at Rome only to embrace certain defeat. I would have risked my own removal from the negotiations if I had pressed too openly or too hard on the Pentagon or on Senator Jesse Helms, so I had to maneuver in ways that steadily built broader circles of support for the policies that stood any chance of adoption at Rome … The stubbornness of various Washington agencies and officials in seeking full immunity from prosecution for American soldiers and other citizens, regardless of whether the United States joined the International Criminal Court, seemed at times to be forged in Alice’s Wonderlands (p. 413).

The bone of contention here is that the US administration was hell-bent on ensuring that no American citizen would face the ICC, ever. And when efforts to place the ICC prosecutor under the supervision of the UN Security Council failed, the Singapore Compromise provided for a middle ground, where the Security Council may refer cases to the ICC and also defer them for periods of 12 months. But even that was not good enough for the US.

Although this compromise gives the ICC a virtual universal jurisdiction (in the sense that even states that are not parties to the ICC may be referred to the Court by the UN Security Council – Sudan and Libya, for instance), it also places the Court at the center of political calculations that underpin the Security Council. After all, you can’t get any more political than the Security Council. It also shields any non-party state that has a P-5 guardian from a UNSC referral. There’s a reason why attempts to refer Syria to the ICC have failed, after of course the Libya ICC referral and its aftermath.

After the Rome Statute was drafted, President Clinton signed it, albeit very reluctantly, and with the full knowledge that the US Congress would never ratify it. The Bush administration later “unsigned” it – Secretary Colin Powell claiming that the Court undermines US judicial authority. The US also went around the world forcing the hands of countries into signing Bilateral Immunity Agreements, which means that those states would never surrender any US citizen to the Court, even if their ICC membership required them to do so. Heck, the US Congress went even as far as passing “the Hague Invasion Act”, which authorizes the use of force to liberate any American held by the ICC, in the Hague.

This  defiant stance against the ICC explained also why the US abstained to vote in the UN Resolution 1593 (2005) that referred the situation in Darfur to the ICC. These days the US government is friendlier towards the ICC when the Court’s agenda matches US strategic interests – for instance, voting yes to the UN Resolution 1970 (2011) that referred Gaddafi’s Libya to the ICC, and supporting a resolution that would have referred Assad’s Syria to the ICC.  Let’s also keep in mind that the Libya referral included a clause that bars the ICC from prosecuting any NATO personnel in relation to their intervention in Libya, even if they have committed crimes.

It is odd then that the US delegation at Museveni’s inauguration would walk out because of the latter’s verbal attacks against the ICC.  If actions speak louder than words, and if we are to judge the US by its actions, no country has gone to greater length to safeguard itself and its citizens from the reach of the first permanent international criminal court.

To be clear, there is no higher form of hypocrisy than Museveni’s current stance against the ICC. Museveni has used the Court to defeat the LRA both politically and militarily, and now uses any opportunity he has to insult the institution. But, we will get back to that in a future post.

Further Reading

An unfinished project

Christian theology was appropriated to play an integral role in the justifying apartheid’s racist ideology. Black theologians resisted through a theology of the oppressed.