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Exempting the United States from Equal Justice under Law

April 19, 2001

The United States wants to be able to stop the new permanent International Criminal Court (ICC) from bringing American officials to trial after it has indicted them. The U.S., which has been pressing for some form of this exemption during five years of negotiations on the ICC, proposed this again in a new form at a UN conference in March.

This court is going to happen. In fact, it is expected to come into being as early as 2002. It will indict individuals, not governments, and it will try only those accused of especially horrible crimes that "shock the conscience of humankind," such as genocidists, mass rapists, and war criminals. After failing to get its exemption into the ICC's statute when 120 countries adopted it in 1998, the United States voted against the statute. The U.S. is now the only democratic country in open opposition to the court.

The United States says that because no other country's forces are as widely stationed around the world, American soldiers and those who send them are uniquely vulnerable to political harassment through misuse of the court. It claims that the numerous safeguards against this included in the ICC statute at its own request are not enough because in the end independent judges will apply them. It insists on having this exemption from trial even as it acknowledges that, since the court must treat all parties alike, future Idi Amins and Pol Pots and their accomplices will also be able to escape international justice.

The U. S. demand tries to reverse a great moral achievement in international criminal law. The 1945 Nuremberg Tribunal established forever the personal responsibility and accountability of those who are guilty of the worst of crimes. Power, position, and rank cannot absolve them; nor can their governments. After almost 50 years of lip service and neglect, the temporary tribunals for Yugoslavia and Rwanda began to enforce this personal responsibility in real trials that sent real criminals to real prisons. The ICC will make permanent this enforcement and the moral commitment it represents.

All of the members of the European Union and almost all the nations of Africa and Latin America have signed the ICC statute. The United States affronts the deeply felt commitment of these countries to remember the atrocities of the last century by acting against those who would commit them again. It seems to stand against the resolve of a new generation, unmarked by the Cold War, to make for itself a powerful instrument to use in its own time against those who will again seek power through fomenting hate.

When many powerful countries have acted together to put an ideal into practice by making an institution to enforce it, then the realist and the idealist, the Kissingerian and the Wilsonian, find themselves on common ground. The United States should respond to its own values and join the court.

Related Links:

Coalition for an International Criminal Court

Rome Statute of the International Criminal Court
United Nations

Amnesty International for the International Criminal Court

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