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