When the United States decided to withdraw an extension of immunity from the International Criminal Court (ICC), news reports all struck the same tone. A typical report described the “diplomatic backlash” and “political defeat” as a “major climb-down” for the United States, which “bowed” to pressure from ICC advocates in the U.N. Security Council, who saw it as a major “victory.” We agree that obtaining another year of ICC immunity for U.S. troops would have made life easier for U.S. troops. At the same time, we are rather skeptical that the administration’s prudent decision is tantamount to anything like a diplomatic defeat.
Let us be clear: The ICC is about as big an abomination as anything the post-modern internationalists on both sides of the Atlantic have concocted. Should the United States ever sign the treaty, we’ll hazard a guess at how the “prosecutors” at The Hague would show their thanks: American officers, diplomats, GIs and perhaps even administration officials themselves would be hauled before the court in a series of show trials designed to humiliate and humble the United States. Every serious Washington politico knows this, though some, including John Kerry, still say they support the ICC in theory, perhaps as a way to score points against the “unilateral” Bush administration.
Lacking the votes to pass the extension in the Security Council, however, the Bush administration fell back on agile diplomacy. By withdrawing the resolution last week, the administration signaled that it was more important to have council unity with the most pressing issue of the day, Iraqi democracy and security, than fighting a symbolic battle, the outcome of which, either way, would not have substantially changed the United States vis a vis the ICC. No doubt certain delegations in the Security Council were itching for a fight — a fight the administration snatched from them — knowing full-well that the United States would have been humiliated if it called for a vote.
For the near-future at least, the withdrawal will no have no effect on our troops in Iraq and Afghanistan. The United States has signed bilateral agreements with 90 of the 94 member states of the ICC, including Afghanistan, that protect U.S. troops from ICC prosecution. Since Iraq has not signed the ICC treaty, U.S. troops there are not under ICC jurisdiction. As State Department spokesman Richard Boucher said after the decision, failing to extend blanket immunity places a tougher acceptance standard for U.S. involvement in U.N. peacekeeping missions where our troops are not exempt from ICC prosecution. The underlying message here is that whenever the United Nations next comes calling for U.S. troops, it better be with a promise of immunity.