Courting charges of hypocrisy

The US State Department has decided to withold aid from Serbia and Montenegro because of “failure to cooperate” with the international war crimes tribunal in the Hague. There is no question that Serbia should submit to the tribunal’s demands to hand over Ratko Mladic, but isn’t it the US who itself refuses to sign-up to the International Criminal Court?

Said Bush about the ICC, “I think it would be bad for our troops to have to be, you know, facing an unaccountable prosecutor in a foreign land”. Er, might that also not be Serbia’s concern too? Is it one rule for us and one for them? But of course, we’re the good guys so it’s ok….

But, Mladic is a certifiable Bad Guy. I just wish the US would hire a PR firm. Its unilateralism (real or perceived) makes it easier for other countries to not play by the rules: “if the US won’t do it, why should we?”



  1. Ronan, I do think that it would be for the better if America would sign on to the ICC, if only because it would (hopefully) greatly reduce the amount of US presence abroac, since it would guarantee politically motivated prosecution of American troops just b/c America is so hated abroad. Your post, however, does little justice to the complexity of the problem. I have written a more < HREF="">in-depth article<> about the US stance towards the ICC that you might find interesting. In fact, I would be interested in hearing your thoughts on it.

    But I would also like to comment briefly on your comment. This stance of the US towards the < HREF="">International Criminal Tribunal for the Former Yugoslavia<> is actually <>far from hypocritical<>. The ICTY is an ad-hoc tribunal. That means that it is a tribunal set up under the authority of the UN Security Council to deal with a genocide and war-crimes situation that has already happened. The United States is in favor of this status quo, that is, the US is in favor of the continued use of ad hoc tribunals to prosecute war crimes. Henry Kissinger < HREF="">succinctly argued this point<> in Foreign Affairs a few years ago. The United States is not in favor of a standing tribunal that is not subordinated to the Security Council to prosecute war crimes, as is the International Criminal Court. Again, I remind you, that I personally would be in favor of US participation in the court for the many reasons I lay out in my article. But the arguments against US participation in the ICC are not frivolous. In fact, they are well grounded. First, the ICC is not accountable to the Security Council. That worries the United States. You cannot deny that it is a legitimate concern of the US that it would be subject to numerous frivolous, politically motivated prosecutions (<>such as those that have often been brought in Belgian courts under their universal jurisdiction statute before Belgium saw how detrimental it was to their international status to be a forum for politically motivated prosecutions of sitting heads of state for the supposed “war crimes” they have committed and repealed that universal jurisdiction statute<>). The US is the world’s first resort when there is a problem area and troops need to be sent in. Unfortunately, the US has been all too willing to do so out of a mixture of an interest in promoting democracy and human rights and protecting its own economic and trade interests (promoting stability in different regions helps with US trade). So that means that US troops are engaged all over the world and that they would be subject to politically motivated prosecutions by people who have an anti-American agenda. Also, the concept of universal jurisdiction and complementarity work together to become an international Supremacy Clause, implying that the ICC’s statute defining crimes is the ultimate law of the land. That is because, even though the concept of universal jurisdiction gives the ICC jurisdiction over the crimes defined in its statute regardless of where they are committed in the world, the principle of complementarity allows a country to evade ICC jurisdiction if it in good faith prosecutes its own nationals who have committed crimes listed in the ICC Statute. So at first blush that seems like the solution that should deprive anyone of an excuse to sign on to the ICC. But the problem is that the ICC itself will decide whether a country is prosecuting its nationals who are perpetrators in good faith. If a country’s laws do not mirror the ICC definitions of crimes exactly, then the ICC has good grounds to say that the country is not prosecuting those crimes in good faith. Hence it can be described as an international Supremacy Clause that represents a serios intrusion onto state soveriegnty. Furthermore, some of the definitions of crimes in the ICC are vague and allow wide variations of interpretation. There is also a vague crime that is as yet undefined called “persecution.” It is a legitimate concern that these vague definitions could become a tool against religion, because it has already been suggested by women’s rights and gay rights NGOs (who, together with state parties, are responsible for writing the language of the definitions) that this as yet undefined crime of “persecution” should be defined such that, e.g. religious doctrine that promotes the traditional family (the family is genocide, courtesy of women’s rights NGOs) and that condems homosexuality (teaching that homosexuality is abnormal and/or wrongful is a crime, courtesy of gay rights NGOs) would constitute “persecution.” Thus, President Hinckley (or Billy Graham) could be hauled to trial in the Hague before a panel of judges from places as diverse as France, Syria, and Sudan and sentenced to 14 years in prison for heading up an institution that is committing genocide (by promoting the traditional family) and persecution (by teaching that homosexuality is sinful). I refute many of these very arguments in my article <>but they are legitimate arguments<>. These are among many other reasons that the US wishes to see the continued use of ad hoc tribunals to prosecute war crimes rather than signing on to the ICC. They are legitimate concents and do not constitute hypocrisy. 

    <><><><>Posted by<><> <><>< HREF="" TITLE="john dot fowles at gmx dot net">john fowles<>


  2. JF, I’ll read your article and report back. Clearly you know a lot about this (much more than me). My concern is what it <>looks like,<> not necessarily what it <>actually is<>. Whenever I am back in the UK I always defend America against charges from family and friends that it is the Great Satan. America’s poor image abroad does not (always) match the reality of this country. Pathological anti-Americanism needs to be better combatted; but when you withdraw or threaten to withdraw or refuse to sign-up to Kyoto, the ICBM ban, and the ICC – even if they are for good reasons – then the world just becomes more entrenched in hating America.

    Hopefully the US tsunami aid-effort will help.

    Anyway, more later. 

    <><><><>Posted by<><> <><>< HREF="" TITLE="ronan at jhu dot edu">Ronan<>


  3. One reason for this appearance of inconsistency or hypocrisy is because of how the media wants you to see the situation. They are not informing you of the major difference in kind between the ICTY and the ICC (the former is an ad hoc tribunal set up under the authority of the UN Security Council, the latter is a standing entity independent of the Security Council and in which the ICC prosecutor has discretion to begin investigations and bring charges sua sponte). The goal of such reporting is to show how absurd the US is being in declining to participate in a court where there is legitimate concern that it will subject the US to politically-motivated prosecutions. And apparently, that is the exact impression that you have gotten. 

    <><><><>Posted by<><> <><>< HREF="" TITLE="john dot fowles at gmx dot net">john fowles<>


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