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US signs up to world court in order to subvert it

M.A. Shaikh

Out-going US president Bill Clinton signed the international treaty establishing the world’s first permanent war crimes tribunal on December 31, in an unexpected move. Acting in the last days of his presidency, and in the last hours before the expiry of the deadline for states to sign up, Clinton has secured for his country the right to become a member of the court, and consequently to influence its evolution, without ratifying the treaty. In a statement he issued after signing the treaty, Clinton explained his belated action by saying: “With signature, we will be in a position to influence the evolution of the court. Without signature, we will not.”

Under the provisions of the treaty, countries had until the end of December 31, 2000, to sign up, a step interpreted as a declaration of support for the international criminal court that will be eventually be established when 60 countries ratify the instrument. After that date, countries can only become party to the treaty by taking the formal step of ratification. By authorising the signature of the treaty at the United Nations, Clinton has secured for the US a role in negotiations to determine the powers of the court. The signature also enables Washington to pose as a supporter of international accountability and justice, a posture often adopted although it is routinely contradicted by the US’s arrogant projection of its imperial power.

In his statement, Clinton expressed concern about “significant flaws” in the treaty that he hoped would be corrected during negotiations before the court begins to function. But he added that it was important to sign the instrument to “reaffirm our strong support for international accountability” and to “put the US in a better position to negotiate changes in the court’s structure and rules”. Admitting in an answer to a question that the treaty already has a large number of safeguards, he said that by signing “we remain in the game, negotiating and continuing to represent the interests of the US government and the US military.”

When the treaty was negotiated in Rome, Italy, in 1998, Clinton refused to endorse it because of warnings from the Pentagon and the US senate that the proposed court would subject US troops, diplomats and other officials to frivolous or politically-motivated prosecutions. More than 130 countries, including all of Washington’s NATO allies, have already signed, while 27 have ratified. Even Britain, a staunch ally of the US, has signed the treaty and is preparing to ratify it.

Washington’s refusal to sign until the last minute stems from sheer arrogance. Initially it even argued that the US, as the ‘sole superpower’, should be exempt from the provisions of the treaty, otherwise it would not send its troops and officials on humanitarian and peace-keeping missions. While failing to secure an exemption, it forced the inclusion in the treaty’s provisions of a guarantee that the court would have no jurisdiction to try any troops for war-crimes unless their own countries refuse to try them. The treaty includes crimes such as sexual slavery and forced pregnancy which are not provided for in US military laws. This means that Americans cannot invoke the safeguard that they should be tried by American judicial authorities as these crimes do not exist in US law. But that can be easily rectified by incorporating these crimes into US federal laws to give American courts jurisdiction, as suggested by O. Everett, a former chief judge of the US Court of Appeals for the Armed Forces.

In fact the US is fully protected under the safeguards, as many in the US have asserted, arguing that it is in the US interest to sign the treaty. Robert MacNamara, former US secretary of defence, and Benjamin B. Ferencz, a prosecutor at the Nuremburg war crimes trials, urged Clinton to sign the treaty. In an article in the New York Times two weeks before the deadline, they argued that US troops are fully protected, while failure to sign would hurt US interests. Like editorials in leading American newspapers, they argued that the US would lose its “credibility and moral standing in the world” and it “look like a bully who wants to be above the law.”

But the US is a bully above the law, and has no moral standing in the world. By signing the treaty Clinton has put it in a position to bully other countries and turn the treaty into an instrument of US interests. As one newspaper editorial put it, Washington could use it to try future ‘Saddam Hussains’, meaning that pro-western war criminals would be exempt while those inimical to US vital interests would not be. This explains why Israel immediately followed the US lead and signed the treaty; Israeli political and military leaders, war criminals to a man, are safe from the attentions of the court, as is Vladimir Putin, the instigator of genocide and other war-crimes in Chechnya.

Having signed the treaty in order to subvert it, Washington is planning to emasculate the court even further by bringing it under the authority of the UN Security Council, where the US can use its veto power. It is also planning to amend the treaty to declare that those countries, like the US and Israel, which sign but do not ratify it, are exempt from its provisions.

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