ICC and Enemy Combatants

8 June 2009

Barack Obama ran and won the presidency upon a platform of change. He argued and insisted that America needed to alter some significant policy areas to create a better world here in America and abroad. Now that Obama has been in the White House for over four months, I would like to examine a policy area in which he has altered the policy espoused by his predecessor George W. Bush, and another area in which the policy will remain the same. The policy areas I wish to examine will evolve around contentious issues in domestic and international law. The first policy I will examine is America’s stance towards the International Criminal Court (ICC). America is one of the few countries who have not signed or ratified the Treaty of Rome. This treaty would legally bind the signatory state to the jurisdiction of the ICC. In this paper, I argue that Obama will neither sign nor ratify the treaty but will follow the footsteps of his predecessors – Presidents Clinton and Bush II. The second policy area I will review is the legal treatment of detainees in Guantanamo, specifically the debate revolving around the closure of the site. In this paper, I will argue that Obama will significantly alter the detention policy enacted by President Bush. Both policy areas encompass many dynamic debates in both domestic and international law. In this paper, I hope to touch upon the most significant arguments in these debate and provide a clear and succinct view of these American foreign policy issues.

From June 15 to July 17, 1998, 160 delegates from around the world came to Rome to negotiate the creation of a supranational criminal court. The criminal court would be the prosecuting body for the “most serious crimes of concern to the international community as a whole” (ICC) and would include, genocide, crimes against humanity, war crimes, and crimes of aggression. The court came into effect on July 1, 2002, and as of March 2009, only 108 countries have joined the court. Since its inception, America has been one of the courts largest opponents with scholars and politicians arguing for and against joining the court. Swiftly altering policy, President Clinton, upon leaving office, signed the treaty but did not send it to congress to ratify it. When President Bush came into office he officially “unsigned” the treaty. Since that time, there has been no official change in this policy area. President Obama has not made a move or suggested a move to sign and ratify the treaty. Historically, the head of states argue that the court’s jurisdiction is too broad and would have a negative effect of American policy.

The court’s jurisdiction is not particularly invasive; it is considered a court of last resort. A case may only be brought to the court in only a few circumstances – First, the case must originate from a ratified state. Second, the serious crime must have occurred within the borders of a signatory state. Third, the crime must be committed by a national of a ratified state, and finally, the United Nations Security Council can refer a case to the court. The court cannot prosecute a state or a company, only individuals. If all of these conditions are met, the ICC may only act if the host country is unable or unwilling to prosecute the individual themselves. This can happen when the state does not have the governmental infrastructure to prosecute. According to legal scholar Anne Heindel in her article, International Human Rights and U.S. Foreign Policy: The Counterproductive Bush Administration Policy Toward the International Criminal Court, she notes, “history shows that domestic courts are frequently unable or unwilling to tackle these types of crimes, especially when they involve powerful government officials. This is because atrocities often arise out of the disintegration state institutions of law and order” (Heindel: 350). The judiciary must have an established power of enforcement and legal legitimacy to prosecute individuals. If this power is missing, the state is unable to prosecute. If the judiciary does not have legitimacy, then the state is unwilling to prosecute. These are two necessary conditions for a case to be brought before the ICC. The conditions needed to be met are precise and protect individuals from being arbitrarily prosecuted by the ICC.

Why, with so many signatories does America not sign the Rome Treaty? Professor Douglas Edlin argues in his article, The Anxiety of Sovereignty: Britain, the United States and the International Criminal Court, that, “American objections to the ICC all stem, in one form or another, from perceived threats to United States sovereignty” (Edlin: 6). If America was a signatory state, the ICC could prosecute American citizens if a crime was committed in one of the 108 a signatory states. Since American army personnel are stationed all over the world including active peacekeeping missions, it is possible that a war crime could be committed and that individual would fall under the jurisdiction of the ICC if the American court system refused to prosecute. Another possibility is that a man from Afghanistan (a signatory to the statute), tortured in Guantanamo, could bring a case against the head of state. The ICC being a supranational criminal prosecuting entity worries American policy makers because the possibilities for arrests of American citizens in foreign countries. This is the exact reason why American legislators passed the American Service Members Protection Act of 2002 (ASPA) on August 2, 2002.

According to Lilian Faulhaber in her article, American Servicemembers’ Protection Act of 2002, “the Act was designed to prevent United States participation in the ICC and to discourage other members of the international community from participating in the Court or assisting it in any way” (Faulhaber: 538). Through this Act America can threaten to withhold military aid to any country that would assist the ICC in the prosecution of an American citizen (Faulhaber: 547). Many countries receive billions of dollars in military aid, and many of those countries have ratified the Rome Treaty. Essentially, the ASPA is a strong arm tactic to persuade countries to disallow any involvement in the ICC if American citizens are involved. Beyond the international regulations, the ASPA does not allow any federal funds to be used to assist any action against a U.S. citizen of permanent resident alien before the court, and it prevents any security information to be transferred to the court for any of its cases. America has positioned itself to be in direct opposition to the court, and thus delegitimizes the courts role in international law.

The Obama administration has not made any move to change this position. There are many other foreign policy issues which are more popular to the public, but this clearly shows the current administrations lack of involvement in international criminal prosecution. The American public at large isn’t familiar with the ICC, which plays a part in the understandable lack of action within the administration. If there is no popular support to join the ICC, the president will not be partial to join. The senate and house are very familiar with this issue and it would become a heated debate on the floor if Obama took steps to sign or to ratify the treaty. Since there hasn’t been any news or updates concerning this issue, it is clear that Obama is going to continue President Bush’s policy towards the ICC. Since the house and senate are controlled by the democrats, this would be the perfect time to ratify the treaty.

The issue of the ICC is not a partisan issue, but the democrats may support the president in all issues so that legislation and regulations that Obama supports are easily passed while they have the majority. Since the ICC has not been an issue for the current administration it is clear that Obama plans to let it sit on the backburner while other more popular issues are brought to the forefront.

One such popular issue is the case of the prison in Guantanamo. The U.S. prison in Guantanamo is unique in that it lies outside of U.S. jurisdiction. Therefore, it lies outside of the legal protections that the American legal system provides such as Habeas Corpus. This is such a significant issue for the president that, “in his first week in office, Mr. Obama signed an order for the prison to be closed by Jan. 22, 2010” (Herszenhorn). For any president to do any action within the first week as president is exemplary of its importance. Guantanamo has been in the international news for years as a place which harbors, detains, and tortures suspected terrorists. The site has been contentious for the very reason that is lies outside of U.S. legal jurisdiction. With Obama’s move to close the site he is motioning for a broad change in American policy concerning international law and domestic policy as well. The most debatable issue within Guantanamo has been the argument of whether the detainees are protected by either domestic or international law.

The most important aspect of domestic legal protection to which the detainees have, until recently, not enjoyed is that of Habeas Corpus. The process of Habeas Corpus is a traditional legal right to know what one is being charged with and what evidence is being brought forth against one’s case. During the Bush administration, detainees in Guantanamo did not have the right of Habeas Corpus. There were a few Supreme Court decisions which decided in favor of the detainees, but congress removed the Court’s jurisdiction in such matters (Hamdan v. Rumsfield). However, the most recent case changes the legal status of Guantanamo detainees. “On June 12, 2008, in Boumediene v. Bush, the United States Supreme Court ruled 5-4 that prisoners in Guantanamo Bay have a common law right to the writ of habeas corpus (Gaffney: 197). This is a highly significant Supreme Court case. A 5-4 ruling signifies the Court was highly decisive on the ruling and it is possible to believe that some justices were currying favor to the entering administration. This ruling in many ways ends the legal battle for detainees in Guantanamo. It is possible to conclude that Obama’s current stance in changing the past policy towards Guantanamo is because he has the support of the Supreme Court.

There is an overwhelming popular support for and against Guantanamo. It is a space in which suspected terrorists are kept, and it is a space where innocent people are kept. A U.S. law professor recently wrote that- The Pentagon recently has disclosed that only five percent of the detainees were apprehended by U.S. forces and only four percent were ever alleged to have actually been involved in fighting. Rather, most of the “suspected terrorists” were turned over to U.S. forces by foreigners in Afghanistan and other countries in return for the $ 5,000 reward the U.S. government offered for each “enemy combatant.” (Scharff: 320)

This policy of detaining individuals from Afghanistan would seem to do more harm than good. Of course, we are taking men from Afghanistan which may help the war effort, but it could also increase the animosity the Afghani’s have towards America which could result in the increase of violent armed conflict against the coalition forces in the region. To further exacerbate the situation we have the published torture photos. With the advent of published torture pictures and the outcry which resulted from them, it is a serious policy decision for the Obama administration to alter the policy of the earlier Bush administration. If and when he closes the prison, it will improve both the international and domestic opinion of America.

It will signal to the rest of the world that we are moving towards an improvement of our past policy towards possible terrorist suspects, and that we won’t torture, hold indefinitely, or break domestic and international law when it comes to possible terrorist suspects. The international criminal attorney John Hall puts it best in his article, From the President: Time to Close Gitmo’s Camp Injustice, “Closing Guantanamo shows we are committed to remediating this sad period in our history, and it will start the Obama administration toward regaining the international credibility we have lost over the past seven years” (Hall: 6). The loss of credibility stems from the far reaching powers of former President Bush.

With the current situation, the Obama administration is changing the balance of power within the government. The Bush presidency was focused on obtaining and retaining as much executive power as possible. Concerning the issues in this paper, the Bush administration held and kept the power to detain individuals outside of the judicial system. Not allowing Habeas Corpus and detaining prisoners without charges escalated to a point that included the indefinite detention of detainees. As Chris Stevenson noted in his article, Continuing the shutdown of Bush administration, “what Obama is bringing is a reversal of the right to hold detainees from the president’s wartime power back to Congress and the International laws of war (War Powers Act, Geneva Convention)” (Stevenson). This alteration of policy is extremely important shift that will balance the three bodies of government.

The moral values shared by most Americans is that we are a country which believes in due process, the right to a fair trial, and the right not to be tortured; all these values that are so dear to the American experience did not exist within the confines of Guantanamo. President Bush argued that to keep the American populace safe from future terrorist attacks, we needed to go to extreme measures to guarantee that the United States was not attacked again. This argument succeeded for the most part, although it was met with strict opposition from human rights groups, legal scholars, and politicians. President Obama stated the situation eloquently when he said, “we have rejected the false choice between our security and our ideals by closing the detention center at Guantánamo Bay and banning torture without exception” (Worthington). By shifting the policy of Guantanamo, Obama is trying to recover what reputation is left of America’s moralistic high ground. President Bush’s policy delegitimized the American government and also created an environment which produced mistrust with both enemies and allies. By closing Guantanamo, Obama is hoping to make this past wrong a lesson learned as we move forward to a brighter future.

In this paper I have chosen two policy issues that focused on international and domestic law. The first policy issue, the ICC, is one in which I argued will remain the same. This is due to the lack of popular support and the strong policy decisions and legislation passed while President Bush was in office. The second policy issue, the prison base in Guantanamo, is an area in which I argue the President will make a change in past policy. This is due to international and domestic pressure as well as President Obama’s belief that we are a nation of morals with laws that need to be followed. Both issues are significant policy areas that go beyond symbolism. They are essential and important areas of law and policy which have strong effects domestically and internationally. President Obama has over three years left in his presidency; anything could change from this point until then.

Works Cited

Edlin, Douglas E. “The Anxiety of Sovereignty: Britain, the United States and the International Criminal Court.” Boston College International & Comparative Law Review vol 29 B.C. Int’l & Comp. L. Rev. 1 2006. p. 6.

Faulhaber, Lilian V.. “American Servicemembers’ Protection Act of 2002.” Harvard Journal on Legislation vol 40 Harv. J. on Legis. 537 2003. p. 537-548.

Gaffney, Megan. “Boumediene v. Bush: Legal Realism and the War on Terror.” Harvard Civil Rights-Civil Liberties Law Review vol 44 Harv. C.R.-C.L. L. Rev. 197 2009. p. 197.

Hall, John Wesley. “From the President: Time to Close Gitmo’s Camp Injustice.” National Association of Criminal Defense Lawyers, Inc. vol 32 Champion 5 2009. p. 7.

Heindel, Anne K.. “International Human Rights and U.S. Foreign Policy: The Counterproductive Bush Administration Policy Toward the International Criminal Court.” Seattle Journal for Social Justice vol 2 Seattle J. Soc. Just. 345 2004. p. 350.

Herszenhorn, David M. “Senate Leaders Balk at Closing Guantánamo Prison.” New York Times. 19 May 2009. 19 May 2009. <http://thecaucus.blogs.nytimes.com/2009/05/19/senate-leaders-balk-at-closing-guantanamo-prison/>.

International Criminal Court. The Rome Statute. July 17, 1998. 05/17/2009 <http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Rome+Statute.htm>.

Scharf, Michael P.. “Security Detention.” Case Western Reserve Journal of International Law vol 40 Case W. Res. J. Int’l L. 315 2009. p. 320.

Stevenson, Chris . “Continuing the shutdown of Bush administration.” Hudson Valley Press. 29 April 2009. 15 May 2009. <http://www.hvpress.net/news/155/ARTICLE/6807/2009-04-29.html>.

Worthington, Andy. “Obama’s first hundred hays, a start on Guantánamo, but not enough .” Word Bulletin. 07 May 2009. 17 May 2009. <http://www.worldbulletin.net/author_article_detail.php?id=1972>.