Helen of the Hague: The ICC and U.S.- EU differences.
By Paul Janiczek

Helen of Sparta left for Troy of her own accord. By divine behest, Paris the Trojan took her hand after being promised it by Aphrodite, the busybody of Greek mythology. In their wake, they left Helen's numerous broken-hearted suitors. It was a stupid move on the part of Paris to pick a fight with so many would-be beaus in one stroke. A great war ensued. This episode of mythology is meant to explain the origin of the costliest war of Greek antiquity save the Peloponnesian War.

Through ancient fiction, the tale of Helen encapsulates the more extreme danger posed by the International Criminal Court (ICC). The existence of the ICC abrogates the sovereignty of not only the nations who chose to surrender to its authority, but to non-participating states, as well. For these reasons the U.S. will continue to resist signing up -- and that reticence will remain a source of consternation between the U.S. and the EU.

Rule of law is fundamental to the governance of a state; consequently, it is regarded as a symbol of sovereignty. In fact, so important is the rule of law that the legitimacy of a government is often measured by the fairness and proper application of its laws. International law seeks to arbitrate between states and reconcile each other's legal systems. The authority of an international organization that administers law only binds the states that claim membership in that body. It is a country's prerogative to bind itself to the ICC's writ and live with its version of "justice." But the ICC, by subjecting citizens of non-participating states to its authority, undermines national legal systems.

The authority of the ICC is supposed to apply to everyone within the jurisdiction of the court who is accused of crimes -- including genocide, war crimes, and crimes against humanity. War-crimes tribunals are not new, nor is the hyper-politicized nature of international organizations. After the Second World War and the Bosnian war, for instance, ad hoc bodies were established to bring justice to the downtrodden and solidify the victories of the forces of good. What is new -- and leaves open the possibility of abuse and political gamesmanship -- is a standing body that is openly accessible to any complainant and vested with globally binding legal authority to pronounce on the laws of armed conflict.

Recognizing this danger, the U.S. Congress passed a sober-minded law known as the American Service-Members' Protection Act(ASPA). It was a principled response to U.S. interests as they relate to the ICC. Among its provisions, the ICC urges the U.S. government to make bilateral agreements with parties to the ICC, according to which U.S. citizens will not be surrendered to the court's jurisdiction. The ASPA further stipulates that any nation that has not signed these agreements -- called "Article 98 agreements" because they are authorized by Article 98 of the Treaty of Rome, which established the ICC -- will lose military aid. Additionally, the U.S. president is authorized to extricate any citizen in the custody of the court. Signing these agreements is the central focus of U.S. policy toward the ICC.

The U.S. approach to securing these agreements is comparatively benign when contrasted with that of the European Union. While members of the EU have chosen to adhere to the rulings of the ICC, as is their right, the EU as an institution has expected that EU aspirants will also accede to and abide by it. EU aspirants have generally fallen in line with "Old Europe." The notable exception of Romania demonstrates the inclination of some of America's friends to reach an accommodation with the U.S. Romania was the first country to sign an Article 98 agreement. Shortly after doing so, it was accused of a "lack of loyalty" to the EU, a veiled threat to a country that aspires to EU membership. Owing to EU duress, Romania has yet to ratify its bilateral agreement with the U.S. In an effort to straddle the divide between the EU and the U.S., the Romanian government has stated that it will ratify the agreement when the EU and U.S. reconcile their positions.

One EU leader, commenting on Eastern European support for Iraqi Operation Freedom, stated, "I therefore think that they missed a good opportunity to keep quiet." This comment is instructive with respect to the EU approach to Article 98 agreements as well. The EU has promulgated a common position on the ICC, one that appears to severely limit a country's right to conclude non-surrender agreements. The Rome Statute clearly authorizes such arrangements, and thus the EU position is inconsistent with the norms of international law. Will the EU find that it is not in its interest to continue such a policy with respect to the ICC and Article 98?

Enter the Belgian experiment with "universal competence," which involved a law that opened Belgian courts to war-crimes trials brought by any plaintiff against any person for any war-crimes-related charge -- regardless of whether the plaintiff or defendant had any connection with Belgium. It took no time for "human-rights" lawyers (read: anti-American cluster-bomb chasers) to file claims against U.S. officials for their hand in Operation Iraqi Freedom. To its credit, the Belgian foreign ministry cited this use of the law as an "abuse," in spite of its previous misgivings about U.S. intervention in Iraq. The Belgian parliament opted to revise the law in an effort to avoid compromising international relations. The debate continues, and time will tell whether these efforts prove successful in quelling the controversy.

The abuse of the Belgian universal-competence law embodies the fears of the U.S. Congress and others. Had it not been for the short reach of Belgian police, perhaps General Franks would have been apprehended while stopping for fuel on his way in or out of the combat theater in Iraq. Under the ICC, such a situation is possible, particularly in light of the common EU position. One need not look at the utter bedlam that was Belgian universal jurisdiction to see the potential for abuse. Consider the Greek Bar Association's recent motion to the ICC to try Britain's prime minister Tony Blair and foreign minister Jack Straw for their leadership in the war against the Hussein regime. If Greek lawyers have designs on the leadership of the United Kingdom, a NATO ally and an EU partner, imagine what they have in mind for President Bush and the U.S. national-security establishment. International business leaders cannot be far behind. Would France allow the board of Dassault to be called in for selling Mirage fighter jets to the next Hussein-like regime? Or, more likely, will Lockheed Martin executives be summoned for selling F-16s to Israel? Such a move would certainly alleviate French angst over U.S. influence in the European fighter market.

It is clear what the ramifications of such a situation would be. The United States, for better or worse, has made its legal decision under ASPA. The European Union appears undeterred. Upon the Rome Statute's entry into force in 2002, nongovernmental organizations supportive of the EU took up positions held by the German army prior to D-Day in order symbolically to defend the shores of the Netherlands from ASPA's worst-case scenario (extrication of a U.S. citizen from the court). Nevertheless, the two sides will have to reconcile. The U.S. is legally in the right and has taken an accommodating approach by working within the framework of the Rome Statute to achieve its ends. By contrast, the EU is not permitting its members to exercise their right under Article 98 of the treaty. In order for the EU to see the folly of the ICC, it may take embarrassing incidents like the indictment of U.S. officials and businessmen (current and former) whose destiny is a state of national house arrest.

As long as Helen's dilemma, the fictional impetus for the Trojan War, is not a prologue.

[Source: National Review Magazine, 07Oct03. Paul Janiczek is a Naval reservist and former staff member in the House of Representatives. He is pursuing a master's degree in national-security affairs. He currently works at the U.S. Department of State. The views contained in this article are solely those of the author and do not necessarily reflect the views of the Department of State or the U.S. government.]

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