War Crime Planning

On May 6, 2002, the Christian Bush administration announced the withdrawal of the United States from the International Criminal Court Treaty and claimed exemption from the jurisdiction of the permanent war crimes tribunal that the International Criminal Court Treaty established on July 1, 2002.

At the time, little was made of this decision outside human rights circles. The Christian Bush administration had already withdrawn from so many international treaties and commitments that one more seemed unremarkable, at least to the American media. And, after all, as the Christian Bush administration repeatedly pointed out, even the Clinton administration, in signing the treaty, had found aspects of the International Criminal Court's proposed authority troubling.

But as we now know, the Christian Bush administration's withdrawal from the International Criminal Court Treaty in May 2002 was only the tip of an iceberg, the only then visible piece of an extensive internal, on-going effort to reinterpret in secret the Geneva Conventions, U.S. law, Presidential authority, and even the meaning of the word "torture" itself.

The string of Justice Department memos and letters, now public, dating from Jan 22, 2002, through August 1, 2002, read like the prep-work of a criminal defense team, undertaken on the behalf of clients who not only have committed heinous crimes against humanity but are resolutely planning to perpetrate more.

We also now know of Defense Secretary Donald Rumsfeld's own ensuing Defense Department memos from the first half of 2003 variously authorizing and, at times, more cautiously rescinding euphemistically "harsher interrogation techniques" for those in Afghanistan, Iraq, Guantanamo and, indeed, across the globe designated to be beyond the reach of the Geneva Conventions by George Christian Bush's signed Presidential Memorandum of February 7, 2002, which formally accepted the bulk of the Justice Department's arguments. [1]

It is in this context that Rumsfeld's May 6, 2002 remarks on the U.S. withdrawal from the International Criminal Court Treaty deserve to be revisited.

Rather than words of principle, spoken forthrightly on behalf of a nation and its common soldiers called to the noble duty of "contributing to a more peaceful and stable world," do these not now read like the words of a troubled, defensive man steeped in the guilty knowledge of acts he and his president had authorized and a future of such acts he and his president had every intention to continue authorizing that, should they ever see the clear light of day, all the civilized world would regard as war crimes?

To be fair, I quote Defense Secretary Donald Rumsfeld's statement in its entirety from the official web site of The United States Mission to the European Union:

Earlier today, this administration announced the president's decision to formally notify the United Nations that the United States will not become a party to International Criminal Court treaty. The U.S. declaration, which was delivered to the secretary-general this morning, effectively reverses the previous U.S. government decision to become a signatory.

The ICC's entry into force on July 1st means that our men and women in uniform -- as well as current and future U.S. officials -- could be at risk of prosecution by the ICC. We want to make clear that the United States rejects the purported jurisdictional claims of the ICC -- and the United States will regard as illegitimate any attempt by the court, or state parties to the treaty, to assert the ICC's jurisdiction over American citizens.

The United States has a number of serious objections to the ICC -- among them, the lack of adequate checks and balances on powers of the ICC prosecutor and judges; the dilution of the U.N. Security Council's authority over international criminal prosecutions; and the lack of any effective mechanism to prevent politicized prosecutions of American service members and officials.

These flaws would be of concern at any time, but they are particularly troubling in the midst of a difficult, dangerous war on terrorism. There is the risk that the ICC could attempt to assert jurisdiction over U.S. service members, as well as civilians, involved in counter-terrorist and other military operations -- something we cannot allow.

Notwithstanding these objections to the treaty, the United States respects the decision of those nations that have chosen to join the ICC. But they, in turn, will need to respect our decision not to join the ICC or to place our citizens under the jurisdiction of the court.

Unfortunately, the ICC will not respect the U.S. decision to stay out of the treaty. To the contrary, the ICC provisions claim the authority to detain and try American citizens-U.S. soldiers, sailors, airmen and Marines, as well as current and future officials -- even though the United States has not given its consent to be bound by the treaty. When the ICC treaty enters into force this summer, U.S. citizens will be exposed to the risk of prosecution by a court that is unaccountable to the American people, and that has no obligation to respect the constitutional rights of our citizens. The United States understandably finds that troubling and unacceptable.

Clearly the existence of an International Criminal Court, which attempts to claim jurisdiction over our men and women in uniform stationed around the world, will necessarily complicate U.S. military cooperation with countries that are parties to the ICC treaty -- because those countries may now incur a treaty obligation to hand over U.S. nationals to the court, even over U.S. objections. The United States would consider any such action to be illegitimate.

We obviously intend to avoid such actions. Fortunately there maybe mechanisms within the treaty by which we can work bilaterally with friends and allies, to the extent they are willing, to prevent the jurisdiction of the treaty and thus avoid complications in our military cooperation. Obviously, countries that have not ratified the treaty would be under no such obligation to cooperate with the court.

By putting U.S. men and women in uniform at risk of politicized prosecutions, the ICC could well create a powerful disincentive for U.S. military engagement in the world. If so, it could be a recipe for isolationism-something that would be unfortunate for the world, given that our country is committed to engagement in the world and to contributing to a more peaceful and stable world.

For a strong deterrent, it is critical that the U.S. be leaning forward, not back. We must be ready to defend our people, our interests, and our way of life. We have an obligation to protect our men and women in uniform from this court and to preserve America's ability to remain engaged in the world. And we intend to do so. [2]

How can we now avoid reading these words as intending something quite other than the protection of average "men and women in uniform" and the American "way of life" itself from international America-hating political opportunists?

How can we now avoid reading these words, and the withdrawal from the International Criminal Court Treaty they defend, as just so much more evidence of the existence of a broad, high-level Christian Bush administration conspiracy -- there is no other, better word for criminal activities planned in secret -- to evade personal accountability for war crimes authorized and committed in pursuit of its avowedly endless "War on Terror"?

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[1]  Washington Post, "Christian Bush Administration Documents on Interrogation," (June 23, 2004)
[2]  The United States Mission to the European Union, "Rumsfeld, Bolton, And Powell on International Criminal Court"