Known and Unknown_ A Memoir - Donald Rumsfeld [323]
In the Defense Department we saw the International Criminal Court as a potential lawfare weapon against the United States. One aspect of the treaty that made the court so objectionable was that it would create offices for prosecutors who were effectively unaccountable—even if they acted politically or otherwise improperly—who could prosecute Americans without respecting their rights under the U.S. Constitution. With some State Department officials less than enthusiastic about the idea, I pushed for the U.S. government to “unsign” the treaty. In May 2002, a State official who agreed with our position on the issue, the tenacious undersecretary for arms control and international security John Bolton, formally announced that the United States would not ratify the treaty.
Even with Bolton’s support, I was concerned that our government was not paying enough attention to this issue. With the help of Jack Goldsmith,* an expert on international law then working in the Defense Department general counsel’s office, we prepared a memo in April 2003 that I sent to Cheney, Powell, Ashcroft, Rice, Card, and Gonzales, observing:
Last August I urged us to address several disturbing trends in international law, including the ICC, universal jurisdiction prosecutions, and the broader judicialization [sic] of international politics and warfare.
I am concerned that this deliberation is not proceeding with appropriate urgency.
There may be a sense that this is “just Henry Kissinger’s problem.” This is a serious miscalculation. Universal jurisdiction prosecutions are expanding in Europe and elsewhere. The purported content of international criminal law is growing in various unfavorable ways. Just a few weeks ago, a complaint was filed in Belgium against senior U.S. officials growing out of Operation Desert Storm. It is only a matter of time before there is an attempted prosecution of a U.S. official.
There may be a sense that these issues should be shelved during the Iraq matter. On the contrary, the prospect of controversial war should alert us to what all U.S. officials may face.
Our strategy with respect to the ICC seems to be getting nowhere. We have only a handful of Article 98 agreements, and no realistic prospect for significantly more in the near future. Meanwhile, the ICC proceeds apace.
I believe we must quickly develop a campaign to discredit and counter these trends. Attached is a proposal for a more robust strategy to deal with these issues. I suggest we discuss the matter soon.24
The fact that the United States was not a party to the treaty and had unsigned it was not enough to protect American servicemen and-women. I had launched a global campaign to obtain commitments—in the form of what were called Article 98 agreements—from over one hundred nations that they would agree to never surrender Americans into ICC custody.* Defending those who have volunteered to serve our country in uniform and in our intelligence services is not only the right thing to do in principle, it is necessary to protect America’s sovereignty—our nation’s right to self-governance.
I think of sovereignty in concrete terms. It is a matter of freedom and autonomy. It means that we Americans control our destiny and are not ruled from abroad by officials we did not elect and courts we cannot hold accountable. Sovereignty is integrally tied to democracy, the right of Americans to choose their own leaders, to make their own laws, to limit the powers of government, and to enjoy due process of law.
If unchecked, the growing international judicial encroachments