EU-USA dispute over the ICC and US Servicemen Immunity
Delivered in Plenary - 3rd July 2002
I have no doubt that most speakers today will criticise the United States, although not of course India, China, Russia and Sri Lanka. And they will perhaps criticise Israel. These are countries that have voiced objections to the Rome Statute, or have refused to ratify it.
The US actions in the Security Council will not in themselves threaten the mission in Bosnia, but indicate the seriousness of America's concerns, the most important of which is the possible prosecution of its civilian and military leaders for serious crimes committed abroad by its military personnel. The expanded definition of war crimes included in the statute and the much looser definition of command responsibility, looser than at Nuremberg, mean that it is ery possible that Donald Rumsfeld or his successor, on a visit to Paris, might find himself under arrest for crimes committed by his subordinates, which he did not participate in, did not give the order for, or even have foreknowledge of, and for which there would be no question of his being tried in an American court.
Some might find that contrary to natural justice but there is no doubt that liberal governments and exponents of international civil society and universal jurisdiction such as Amnesty have fully supported the coming into being of the ICC, whilst ensuring a minimum of public debate over its flaws and its ability to cause political mischief for the Americans.
There are other problems. It is at least arguable that terrorists will be excluded from some of its provisions and there is a danger that justice will take precedence over amnesties that deliver long sought-after peace and reconciliation in countries such as Angola, South Africa, Sri Lanka or Colombia, to name but a few.
International justice is a noble principle, but America's concerns are very real and serious and it is perfectly entitled, as a sovereign nation, to pass the ASPA and use Article 98.2 of the Rome Statute, but not of course to use force against European nations such as Holland.
We should look for ways to meet these concerns, if necessary through altering the ICC's statutes to tighten the provisions relating to command responsibility and giving the UN Security Council a codecision role in the prosecuting process.