Stop the US Foul
Play
by Lloyd Axworthy*, July 17, 2002
Perverse as
it may seem, we should be grateful to the Bush administration
for its recent clumsy efforts to undermine the International Criminal
Court just as it came into existence on July 1. The administration's
maladroit use of the United Nations Security Council to alter
the terms of the Treaty of Rome, the founding document of the
Court, should be a wake-up call for all those committed to building
an international system based on a rule of law and all who care
about maintaining the United Nations as a credible organization.
First, any illusion that the present
U.S. administration might have a smidgeon of respect for international
treaties or multilateral co-operation should be finally dispelled.
The disdain of the Americans is palpable; they'll resort to crude
means to wreck any form of international architecture with which
they disagree.
The argument they made in demanding immunity from
the ICC -- that this was simply a way of protecting their peacekeepers
-- was a false one, and they know it. As Paul Heinbecker, Canada's
permanent representative to the UN, pointed out, the United States
has all the safeguards it needs -- particularly the fact that
the ICC is a jurisdiction of last resort.
This means that if any crime were committed by
an American, be it by a soldier stationed in Bosnia or by the
Secretary of Defence in Washington, then the U.S. justice system
-- civilian courts or military tribunals -- would be entitled
to prosecute the case. The ICC only comes into play when a nation
state is unwilling or incapable of exercising legal action against
an act of genocide or a crime against humanity, as defined in
the treaty.
Unfortunately, this refutation of the Americans'
oft-stated objection never got the attention it deserved; too
often, the media bought the false notion that this was a jurisdictional
dispute. The antagonism of Washington's current rulers toward
the ICC, and their reason for disavowing the Clinton administration's
signature on the Rome Treaty, is that they do not want to be restrained
by any limitation on their actions, including compliance with
international criminal law.
What's particularly shocking about this attitude
is that it flies in the face of all President George W. Bush's
aims as set out in his campaign against terrorism. We hear constantly
that this is a great battle between forces of good and evil, of
justice versus injustice. Yet rather than embrace a genuine, broadly
supported effort to construct a global system of legal co-operation
in investigating, capturing, prosecuting and incarcerating international
criminals including terrorists, the Bush administration set out
to emasculate such an institution.
That was bad enough. But the Americans compounded
the damage inflicted on the international multilateral system
by their tactic of holding hostage the renewal of a peacekeeping
mission in the Balkans and subverting the role of the Security
Council. The so-called compromise arrived at by backroom deals
among the permanent five members of the council is frankly a cave-in
to U.S. demands.
And it sets two very dangerous precedents. First
is the use of blackmail on peacekeeping to achieve the purely
self-interested objective of one of the council's permanent members.
Second, the compromise acquiesces to the Security Council's questionable
right to amend by interpretation a treaty arrived at in open discussion
by representatives of more than 100 nation states in a founding
convention. The compromise, giving a 12-month hoist to any application
of treaty provisions, abrogates the original intent of the drafters.
It does not protect the integrity of the Rome Statute, as claimed.
Fortunately, that position is not going unchallenged.
Our ambassador at the UN, supported by the Minister of Foreign
Affairs and the Prime Minister, has led the fight to preserve
the validity of the court. Mr. Heinbecker was able to obtain an
open debate at the council and used that to expose U.S. myths
and mobilize opposition to the original and more blatant initiative
to achieve blanket immunity. It was Canadian diplomacy at its
best.
And it must be continued by our seeking to invoke
the engagement of the UN General Assembly on this vital matter.
The permanent five members have sought by a sneaky procedural
device in the wording of the compromise resolution to keep the
assembly out of the picture. But this position is not impregnable;
it's imperative that the assembly be seized of both the inherent
threat to future peacekeeping missions and the erosion of the
ICC that the council decision entails.
In fact, there's now an opportunity to institute
even further reform. The time has come to begin working toward
the democratization of the Security Council by insisting that
all members be elected. The UN cannot be credible when its decisions
are so dominated by a small, unaccountable elite of states that
do not represent the full interests of the world -- especially
when the Security Council's permanent members use their privileged
position to eviscerate the Charter of the United Nations.
While that monumental task is under way the role
of the General Assembly needs to be asserted and enhanced.
A good place to start is by building a capacity
for peacekeeping that doesn't rely on the Americans. One irony
of their indignant stand against the ICC having jurisdiction over
peacekeepers is that, of the 45,000 peacekeepers serving in UN
missions, only 745 are supplied by the United States. Where the
Americans do have an edge is in transport, logistics and intelligence-gathering.
Canada should co-operate with the Europeans to develop those capacities,
so that the next time the Americans want to play hardball, the
rest of the world can tell them to take their ball and go home.
The International Criminal Court needs careful
stewardship, attention, resources and support during this critical
start-up period. We know it faces an implacable foe in the present
U.S. administration. This is all the more reason to redouble efforts
to assure its effective launch and to continue campaigning to
bring more members on board.
Establishing the first new international institution
of this new century dedicated to protecting people against violation
of their basic rights is a remarkable achievement in the progress
of humankind. Canada has played an important role from the time
of the ICC's inception. We were there last week to defend it against
unwarranted attack. We now have the continuing task of helping
to give it a firm foundation. Thank goodness for the wake-up call.
*Lloyd Axworthy, Canada's foreign affairs minister
from 1996 to 2000, is director and CEO of the Liu Centre for the
Study of Global Issues at the University of British Columbia.
THE GLOBE AND MAIL
Wednesday, July 17, 2002 - Print Edition, Page A13
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