Iraq's Flirtation With the ICC

The story was the stuff of a Bush administration nightmare: "Iraq joins the International Criminal Court."

The ICC is the multilateral judiciary that Washington fears could be used to prosecute U.S. servicemen. Iraq, of course, is the centerpiece of the president's war on terrorism and temporary home to as many as 153,000 U.S. troops, some of whom have been accused of torturing and killing Iraqi civilians.

So when the Azzaman, an independent daily in Baghdad, reported in February that Iraq had joined the "nearly 100 countries that have so far signed the court's treaty," the Bush administration found two of its policies on an apparent collision course.

On the one hand, the administration was touting Iraq's transition to democracy as a model for the Arab world. On the other hand, the Iraqi transitional government was embracing a multilateral treaty that Washington has resisted for years. Worse yet, Iraq's decision raised the possibility that Washington would have to take its diplomatic campaign against the ICC to Baghdad, where the question of responsibility for war crimes is a live issue.

The decision was made at a meeting of interim President Ayad Allawi's cabinet in early January and announced in mid-February, according to translations of Iraqi government documents provided by ICC supporters.  Not only was Iraq's joining the ICC "received with glee particularly from local human rights groups" in Iraq, according Azzaman. The French Foreign Ministry was also expressing "satisfaction" with the decision, which it portrayed as an endorsement of French foreign policy.

Iraq's decision, said a Foreign Ministry spokesman, "contributes to the universality which we are seeking for the ICC's statute and attests to Iraq's confidence in the ICC. "

Joining the ICC also made Iraq technicially ineligible for U.S. military assistance. The American Servicemembers' Protection Act forbids U.S. military assistance to countries that join the ICC but also gives the president has the right to waive the ban on military assistance. Since 2002, the United States has asked most the countries of the world to sign what is known as an Article 98 agreement. These bilateral pacts forbid the surrender of U.S. soldiers to ICC jurisdiction. Countries that don't sign risk losing U.S. military assistance.

The United States is not shy about publicizing Article 98 agreements. The State Department announced last week that Angola had become the 100th country to sign one. But the U.S. campaign against the ICC has proven controversial in some countries. In Kenya, for example, the government is now balking at U.S. demands.

The U.S. and Kenya are "headed for a major clash of interests" over the ICC, The East African newsweekly reported on April 25.

"The Kenya government has no intention of exempting anybody or any country under any circumstances," said Assistant Minister for Foreign Affairs Moses Wetangula.

U.S. Ambassador William Bellamy replied in The Nation newspaper that ICC supporters were peddling "inaccurate commentaries " about U.S. motives.

Such a debate in the Baghdad press would have tested one of the administration's arguments against the ICC: that it will not deter human rights abusers.