Policy, Politics, and Global Relations

International Criminal Court Phobia

Over the past few months a transatlantic dispute has been brewing on the issue of international judicial cooperation, and it has been straining relations between the United States and its allies and friends in the European Union.

The dispute goes beyond the opposition between the European Union and the United States, because it is clearly on a worldwide scale. However, unlike the divergent positions on genetically modified corn or the hole in the ozone layer, which have been aired ad nauseam by the international mass media, this dispute, which concerns international law and the rights of all the inhabitants of the planet, is not a media event and does not seem to stir the passions of political parties or chanceries or even movements and organizations whose very purpose is to promote human rights. It does not even seem to move those who champion the “global defense of the rights of the weakest,” as is the case of the noisy and itinerant anti-globalization movement.

The issue of the controversy is the International Criminal Court, a permanent tribunal that would have jurisdiction over war crimes, crimes against humanity, and genocide. The charter of the International Criminal Court was approved in July 1998 in Rome, after a laborious diplomatic conference convened by the United Nations.

As of today, the court charter has been signed by 139 countries and ratified by 52. For the court to begin to function, 60 ratifications are needed, and it is likely that this number will be reached in the next few months.

To achieve this objective, Spain, which presently chairs the European Union, is working hard, as was confirmed by President José María Aznar, speaking before the European Parliament. In the meantime, on Feb. 8 and 9, there is a conference in Seville organized by a broad coalition of organizations to speed up the procedure for ratification of the court’s charter by all the Mediterranean countries.

The United States opposes the institution of the International Criminal Court, while the EU resolutely supports it. Washington has proclaimed that it is unacceptable that a U.S. citizen, especially a member of the armed forces, could be indicted and tried by other than American judges. Even a concession did not help; namely, to include a clause in the charter recognizing the precedence of the judicial system of the country of the accused to try the accused under international law.

After the crimes perpetrated on Sept. 11 against the American people and against all humanity, it was hoped that the Bush administration, eager to create a world anti-terrorist coalition, would re-examine its rejection of the court, if only to respond to the deeply felt need of the international community to find new and effective tools, including judicial ones, to fight global terrorism.

But Washington’s position remained inflexible. I am among those who, even while recognizing Washington’s right to identify and punish with every means those responsible for Sept. 11, understand that the best way to conclude the military phase of the conflict is to designate the masters of terror (such as Bin Laden) as detainees waiting to be brought to justice (like Milosevic), and to administer justice in its classic form: a fair trial, with impartial judges, without special tribunals or jurisdictions.

It is with the bitterness of one who believes the best model of democracy is the American one that I observe that not even the Sept. 11 tragedy seems to have helped Americans and Europeans to bridge the gap between their respective legal cultures. On Sept. 15, Bush petitioned the EU, which was then involved in a delicate task of harmonizing its 15 criminal justice systems, to revise its plan to unify arrest warrants for member countries, to “eliminate all discrimination with respect to extradition petitions originating in the United States or other third-party countries.”

This was an unfortunate misstep that irritated the Europeans on two counts. First, because extradition has remained under the national jurisdiction of EU countries. Second, because the European Convention on Human Rights prohibits the extradition of anyone to countries where the death penalty is in effect for the crimes for which that person is accused.

As if all this were not enough, on Dec. 7, 2001, the ultraconservative Republican senator, Jesse Helms, won approval for an amendment to the defense budget, which, along with re-denying military aid to countries that ratify the court charter, proclaimed Washington’s right to “liberate by every means at its disposal” any U.S. soldiers who might be arrested by the future international court. This amounts to a slap to the 139 countries that have supported the creation of the court.

Before the joint session of the House of Representatives and the Senate approved the budget, eliminating Helms’ inflammatory proposal and replacing it with a text that limits itself to denying funds from the Department of Defense that might be destined for the International Criminal Court, the European Parliament had taken the lead and fired off an advisory to Washington. On Dec. 13, it approved a resolution that expresses serious reservations about judicial cooperation between the United States and the EU and requires that every agreement in this sphere must “respect the European Convention on Human Rights.”

Admirers of U.S. democracy, who are anxiously awaiting the goal of 60 ratifications to be reached, hope that this will happen in time to proclaim at the International Justice Conference next July 17, which will mark the fourth anniversary of the Treaty of Rome.

They also hope that someone in Washington will act to prevent the West’s two pillars from deepening their division and to prevent the United States from finding itself, in the sphere of international justice, isolated even more than what its maintenance of the death penalty has brought it.

I wonder what function is fulfilled by multinational political associations, such as the Socialist International, international associations of Christian Democrats and liberals, or multinational associations of so-called civil society, starting with those that routinely condemn globalization, if they are unwilling to take a stand on the possibility of a globalization of justice and the fundamental rights of persons.

Emma Bonino is a member of the European Parliament and the leader of the Italian Radical Party.