ICC Bill and US Disrespect
for International Law

Date: Fri, 7 Jul 2000 23:09:47 -0400 (EDT)

Dear All,

Last month, the American Servicemembers' Protection Act of 2000 was introduced into the House and Senate. Ostensibly to protect American soldiers from being tried before the newly forming International Criminal Court (ICC) -- a global court for perpetrators of crimes against humanity and several similar types of crime (see http://www.un.org/law/icc/index.html for more information on the ICC) -- which the United States has not yet joined, the bill seeks to solve a problem that does not exist, and does much harm in the process.
The details of this bill are below. The forwarded e-mail summarizes the bill well, but if you would like to see it for yourself, you can go to http://thomas.loc.gov/ and enter the bill number (use S. 2726 or H.R. 4654). Briefly, this bill bars U.S. cooperation with the ICC in a number of areas, bars American participation in peacekeeping operations where there is no guarantee that no American will be brought before the ICC, and essentially pits the U.S. against the ICC.
The problem that does not exist is the risk that the ICC will prosecute American military personnel. If a State that has jurisdiction over a crime (as the U.S. would have for any U.S. nationals accused) investigates or prosecutes the crime, the ICC cannot take up the case, unless the State's courts are unable or unwilling to conduct a genuine investigation or prosecution. If the United States conducts a genuine investigation of any charges against U.S. military personnel of war crimes and the like -- as one would certainly expect the United States would do -- the ICC will not be able to try the case.
Let me highlight why it is important that this bill not pass, both because of the noxious message that this bill sends to the rest of the world -- and to ourselves -- and because of several other harmful effects this bill might have.
International law includes much of the world's most progressive law, including human rights law, which has its roots in the dignity of the human being. Yet the bill before Congress displays a stunning disrespect for international law. The message that this disrespect conveys to the rest of the world is that the United States believes that it is above international law.
The message itself could have tangible effects. American disregard of international law (hardly a new phenomenon, unfortunately) not only reduces American credibility when, for example, pressing for human rights improvements elsewhere, but also reduces pressure on other countries to respect international law. After all (other countries might ask), if the United States -- the country that preaches the importance of the rule of law -- ignores the law when it suits their interests, why should we do any differently?
The United States puts a cruel choice to the United Nations with respect to peacekeeping -- essentially, disavow international law or don't expect U.S. troops to participate in peacekeeping missions. Particularly in Africa, the United States has been very reluctant to contribute peacekeeping troops. This bill makes it all the more likely that this failing in international responsibility will not soon improve.
A leader among nations uses its power to benefit the community of nations; it does not use its power to defy the will of nations seeking to build a more harmonious and peaceful global community. This bill takes the United States step down the latter, ignoble road.
Please call/write/e-mail your representatives in Congress to urge them to oppose this bill (calling and writing are supposed to be more effective, I think, but even an e-mail would be great). You can find contact information for your Senators and Representatives at http://www.visi.com/juan/congress/. Thank you for your attention to this issue. Please see the information below.

Yours,

Eric

"I have only dreams: to build a better world, a world of harmony and understanding, a world in which it is a joy to live. This is not asking for too much." -- Yitzhak Rabin


---------- Forwarded message ----------
PLEASE CIRCULATE WIDELY

Defend the ICC

Action Alert! June 30, 2000
The American Servicemember's Protection Act of 2000

Action: Write a letter to both your Senators and your Representative urging them oppose The American Servicemembers' Protection Act of 2000, a bill that restricts US cooperation with the International Criminal Court (ICC) and jeopardizes our relationships with our allies.

The American Servicemembers' Protection Act of 2000 Description: "A bill to protect United States military personnel and other elected and appointed officials of the United States Government against criminal prosecution by an international criminal court to which the United States is not a party."

Introduced in the US Senate as S. 2726 and in the House as H.R. 4654 on 14 June 2000.

Key Provisions

  • No governmental entity in the United States, including any court, may cooperate with the International Criminal Court in matters such as arrest and extradition of suspects, execution of searches and seizures, taking of evidence, seizure of assets, and similar matters.
  • The U.S. must secure permanent immunity for American personnel from ICC jurisdiction before the U.S. can participate in any assessed United Nations peacekeeping operation (or other arrangements must be in effect protecting such U.S. personnel from extradition to the Court).
  • No classified national security information can be transferred directly or indirectly to the ICC.
  • No country that has ratified the treaty establishing the Court can receive U.S. military assistance. (Exemption for NATO member countries and "major non-NATO allies," cited in the bill as Australia, Egypt, Israel, Japan, the Republic of Korea and New Zealand). The President may waive this restriction for countries that ratify the treaty but then enter into an agreement with the United States protecting U.S. personnel from extradition to the Court.
  • The President is authorized to use all means necessary and appropriate to bring about the release from captivity of U.S. or Allied personnel detained or imprisoned against their will by or on behalf of the Court.
  • The President is directed to analyze U.S. status-of-forces agreements and alliance command arrangements, and develop plans to achieve enlarged protection for U.S. military personnel from the ICC.
  • These provisions are in addition to existing U.S. law (the 2000-2001 Foreign Relations Authorization Act) which prohibits any U.S. funds going to the ICC once it has been established unless the Senate has given its advice and consent to the Rome Treaty.

Background:

  • The ICC is going to happen. The ICC will come into existence when 60 countries ratify the statute. Currently, 13 countries have ratified, and most observers believe that the court will come into existence within the next two to three years.
  • This bill would hurt US relations with its allies. Most of the US's NATO allies, all of the European Union members, and other close allies like Canada, Australia, and Switzerland, strongly support the court and have stated their strong opposition to US proposals to exempt its soldiers and officials from prosecution.
  • This bill, and US efforts to secure exemptions for its troops and officials, are unnecessary. According to the principle of complementarity, which was included in the statute as a concession to the US delegation in Rome in 1998, the ICC can intervene only when national courts are unable or unwilling to grant a fair trial to the accused. US Secretary of Defense Richard Cohen, while opposing the ICC, admitted that this would provide protection to US troops and officials during a press conference on June 12: "We have demonstrated over the years wherever there is an allegation of abuse on the part of a soldier we have a judicial system that will deal with it very effectively," Cohen said. "As long as we have a respected judicial system then there should be some insulation factor (for the United States.)"
  • The bill is, among other things, a scare tactic designed to pressure other countries into rejecting the ICC. This legislation signals that opponents of the ICC in the US Congress have recognized that the Court is likely to happen even without US participation. It is a last-ditch effort to prevent further ratifications and to prevent future cooperation between the US and the ICC if the court comes into existence.
  • The provisions prohibiting military assistance to states who ratify and authorizing the US to take all necessary measures to free accused US nationals are attempts to intimidate which ignore the full range of interests military assistance serves and inevitable future need of the US to use the ICC when it becomes the only available international criminal tribunal for future crimes.

Talking Points:

  • This bill is bad for US national security and foreign policy objectives. Even if your Senator or Representative does not explicitly support the ICC, they should recognize that this bill would further damage our international reputation with its threatening and bullying tone, and would restrict the flexibility we need in conducting our foreign policy.
  • The bill is unnecessary: The statute already contains sufficient protection for U.S. officials, most importantly through the principle of complimentarity, which stipulates that the court only has jurisdiction if the country of the accused's nationality is not able or willing to prosecute the individual in its national courts.
  • The ICC should be supported, not undermined, and the US should sign and ratify the treaty as soon as possible. In the meantime, the US government should continue to participate constructively in UN negotiations and support a strong and effective ICC.

Sample Letter:

The Honorable (Your Senator's full name)
United States Senate
Washington, DC 20510

The Honorable (Your Representative's full name)
United States House of Representatives
Washington, DC 20515

Dear Senator (last name) OR Dear Representative (last name) :

  • urge him/her to oppose The American Servicemember's Protection Act of 2000 (
  • include the bill number, S. 2726 US Senate and H.R. 4654 in the House
  • stress that the bill not only hurts the ICC, but hurts US foreign policy
  • express your strong support for enforcement of international law to punish genocide, war crimes and crimes against humanity
  • request that he/she make a strong public statement against the bill
  • state your hope that he/she will support the court through legislation and support of signature and ratification

Sincerely,

your name
city, state, zip code

_____________

If you would like to further support the work of WFA, we now accept credit card donations over the telephone and the internet. Contact Liz Thompson, Development Director, at lthompson@wfa.org or (800) WFA-0123 for more information.

http://www.wfa.org/


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