August 8, 2008
LONDON – Irony of ironies. The U.S., which under President George W. Bush “unsigned” its membership of the International Criminal Court and then waged a ferocious campaign to persuade other countries to promise to exempt the U.S. from future prosecution on pain of having their military aid withdrawn, is now emerging as the behind-the-scenes flag bearer of the court.
The country which has a long history of refusing to ratify treaties – the League of Nations for one – or just forgetting about them – as it did with the Genocide Convention for 40 years – or contravening them blatantly as it has recently with the Convention Against Torture, whose ratification President Ronald Reagan steered through the Senate, last week fought a lone battle at the UN Security Council which in effect was pro ICC. It refused to vote for a watered down version of the resolution on the Sudan, because it dropped support for the recent decision of the ICC’s chief prosecutor to indict Sudan’s president.
For two years now the U.S. has been quietly supporting this legal pressure on the Sudan with the ICC announcing one prosecution after another. It has also not got in its way when it launched prosecutions in the Congo and Uganda.
In 2002 the U.S. vetoed a resolution extending the UN peacekeeping mission in Bosnia because at first the Security Council would not promise that U.S. troops should be granted immunity from prosecution by the ICC. Later, the Security Council compromised and gave the U.S. a one year exemption. But under European pressure the exemption was not renewed and the U.S. appeared to quietly accept that.
Americans like to regard themselves as law abiding when it comes to solemn undertakings. Yet historically the U.S. had little compunction about breaking agreements with Native American tribes. And today its flagrant disregard for the Geneva Conventions and the UN Torture Convention remind the world of its propensity for contempt, even though originally it played a significant role in negotiating these conventions onto the world’s statute books.
In post-war times the U.S. has failed to ratify three important Conventions – on the Rights of the Child, on the Elimination of All Forms of Discrimination against Women, and the International Covenant of Economic, Social and Cultural Rights.
The Senate overrode the Clinton Administration’s wish to ratify the Comprehensive Test Ban Treaty. However, the U.S. continues to participate selectively and even funds its International Monitoring System which tracks fall out from nuclear tests. In short, it works to constrict other countries while putting itself outside the same discipline.
With the Kyoto Protocol on global warming and the Law of the Sea Treaty, Professor Antonia Chayes of the Fletcher School of Diplomacy at Tufts University says that “America appears to others as a free rider, benefiting from the terms negotiated in international agreements without incurring the costs of adherence.”
In some cases the U.S. has become party to a treaty and then failed to pay its dues or has blocked its full bodied implementation. With the Chemical Weapons Treaty the U.S. at first was intransigent about inspections on American soil. The Pentagon refused to cooperate with inspectors, frustrati ng the verification of reductions of stockpiles. It forgot the role of leadership – when the U.S. ratified the treaty 86 other countries felt moved to joined on the same day.
America may be the worst of the Western nations on this score but from time to time the Europeans and the Japanese have done the same – look at the Norwegian and Japanese attitude to the internationally approved limits on whaling. Countries governed by Sharia law have also carved out important exemptions from the human rights treaties they sign.
Outside the disarmament and human rights areas American treaty compliance is good. It has an admirable record on enforcing environmental treaties, especially those concerning wildlife and wild fauna and flora. It has worked hard to make effective the Montreal Protocol on Substances that Deplete the Ozone Layer. The U.S. led the effort to ban chlorofluorocarbons which were destroying the stratospheric ozone.
International treaties ARE important. They become shared principles of behavior and an overwhelming majority of nations are reasonably good at implanting them. But for the creation of a world which is a world of laws not of men it is going to need a more determined American leadership.
In 2009 there will be negotiations to define crimes of aggression, with the aim of incorporating them in the mandate of the ICC. The U.S. should be there, putting its shoulder to the wheel.
