Court Appeals

Comment is Free 9 May 2008

John Bolton's political body lies a moulderin' in his grave, and Condoleezza Rice's state department is jumping all over it. The rebarbative former unconfirmed US ambassador the UN has spent his time since leaving attacking the Bush administration's softness on foreign policy in terms that would make him a poster boy for the John Birch Society.

And now the administration is backtracking on Bolton's self-proclaimed proudest achievement - the "unsigning" of the Rome Treaty on the International Criminal Court. John Bellinger, state department legal adviser told scholars at DePaul University: "We do not disagree over the statute's end goals, and we are prepared to work with those who support the court in appropriate circumstances." If not exactly a ringing endorsement, it signals an end to the war of attrition waged by Bolton and his ilk.

These palaeocons viewed the court as a direct threat to American sovereignty, and they used the Bush administration to fight it in every way. One was to refuse military cooperation to any country that ratified the treaty and refused to sign a bilateral agreement with Washington that uniquely protected Americans from being extradited.

The treaty itself, at least before Abu Ghraib and Guantánamo, had so many defences built in against "politically motivated" prosecutions that Bolton and company feared that foreign observers could never really see what the problem was. Never mind that this was like developing air-fresheners for astronauts in case the moon was made of green cheese. The administration harassed small countries to sign bilateral agreements. Underlining the element of bullying already inherent in trying to exclude Americans uniquely from the court's jurisdiction, Washington did not apply the rules to its major allies, all of whom were among the 106 ratifiers of the treaty.

In fact, many of the so-called bilateral agreements extorted from small countries were as substantial as the "coalition of the coerced" that Bush pulled together for the invasion of Iraq, not ratified by parliaments, and in any case, according to many legal experts, illegal.

Bolton's now-abandoned policy was based on the Three No's he outlined to the Senate foreign relations committee: "No financial support, directly or indirectly; no collaboration; and no further negotiations with other governments to improve the statute ... This approach is likely to maximise the chances that the ICC will wither and collapse, which should be our objective."

The beginning of the end for Bolton's no-surrender campaign came even while he was still at the UN, when reality impinged to the extent that the US had to abstain on the resolution siccing the ICC on those responsible for the massacres in Darfur.

Now the turnaround seems to be based on pressure from, of all places, the Pentagon, whose troops the agreements were supposed to protect. The American Serviceman's Protection Act meant that the Pentagon could not work with the military of the many independent minded countries such as Chile that refused to bow to the Bolton diktat.

And, of course, since Bolton's departure and his scathing comments on the state department and Bush policies, there must also be some retributive factor: dancing on Bolton's political grave by downplaying the deed of which he was most proud, "unsigning" the treaty that Clinton, along with Israel and Iran, had signed in the last weeks of his second term.

But even then, all the main candidates left in the field are somewhat, well, Clintonian, on the issue. They all talk about cooperation with the ICC, and are prepared to entertain signing (or perhaps withdrawing the withdrawal) with proper safeguards. John McCain will be pulled to the right on the issue, at least during the election. Hillary Clinton and Barack Obama both sound warmer toward the ICC, not least since it began to investigate Sudan, where the ICC has been the only, albeit somewhat blunted weapon that the world has been able to wield against the perpetrators. Clinton says she will decide to work with the ICC based on American interests, while Obama, heading off a future wave of vigilantes, says he wants to consult the military before going ahead.

However, now that the US has stopped trying to strangle the ICC and is even cooperating over Sudan, it really makes no sense to stay outside, and certainly not to boycott meetings of states parties where any legitimate (if any) US objections could be dealt with.

It is a sad commentary on what this administration has done to the US's standing that when the treaty was under negotiation the other parties were quite prepared to accept that the US military justice system was exemplary and that war crimes committed by its troops would be prosecuted domestically. After waterboarding, rendition, illegal military commissions and sentences for Abu Ghraib more commensurate with a ticket for jaywalking than wholesale violations of the Geneva Conventions, US delegates will not be addressing their colleagues from any moral high ground.

Any new president who really wanted to draw a line under the US's shameful scofflawishness under the Bush administration should really ratify the ICC treaty immediately without reservations.