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Hillary Clinton's Strident Opposition to the International Criminal Court

Former Secretary of State and Democratic presidential hopeful Hillary Clinton. (Photo: Saul Loeb/AFP/Getty Images)

Supporters of international law have expressed consternation that the leading candidate for the Democratic nomination for president -- like most of her potential Republican rivals -- strongly supported the illegal U.S. invasion and occupation of Iraq. Hillary Clinton's support for the Bush administration's request for war authorization effectively placed her in opposition to the United Nations Charter and the Nuremberg Principles forbidding such wars of aggression. Ironically, these important international legal standards were in large part designed by officials from administrations of the very political party she hopes to represent in the contest for the White House.

Clinton's defenders insist that her vote in support of the invasion was simply a "mistake," as if this graduate of Yale Law School had somehow forgotten such basic principles of international law or the obligation of the United States, under Article VI of the Constitution, to uphold such binding international treaties.

However, the Democratic front-runner's hostility towards international law goes well beyond her support for the Bush administration's imperial ambitions in the Middle East. In previous columns, for example, I have noted her support for Morocco's illegal annexation of the occupied Western Sahara, her support for Israel's illegal annexation of occupied greater East Jerusalem and proposed annexation of large segments of the occupied West Bank, her defense of Israeli war crimes, and her attacks on the International Court of Justice for its 2004 ruling upholding the application of the Fourth Geneva Convention in territories under foreign belligerent occupation.

One of the most disturbing examples, however, is in regard to her strident opposition to the International Criminal Court (ICC).

The ICC was established by international treaty in 2002 in The Hague, Netherlands, as a means of prosecuting individuals for genocide, crimes against humanity, and other international war crimes. It grew out of the 1998 Rome Statute signed by the United States and 122 other countries in the hopes of finally establishing accountability for individuals for serious violations of international humanitarian law.

In response to the signing, right-wing talk show hosts and other conspiracy theorists here in the U.S. began claiming that the ICC would force American soldiers to stand trial before an anti-American tribunal on trumped-up charges without basic defendants' rights, part of what many saw as a plot by the United Nations to impose a "world government."

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In reality, the ICC only has jurisdiction in cases where national courts are unable or unwilling to prosecute soldiers or others for such crimes. Despite some notable lapses in prosecuting some offenses, the Uniform Code of Military Justice provides a sufficient domestic mechanism for trying any members of the U.S. armed forces suspected of alleged war crimes to avoid having any American soldier tried under ICC jurisdiction. Furthermore, virtually every person put on trial before the ICC since its founding has been a high-level military or political figure, not individual soldiers.

Despite this, ultra-conservative Sen. Jesse Helms (R-N.C.) introduced an amendment called the American Service-Members' Protection Act prohibiting the United States from cooperating in any way with the ICC and its prosecution of individuals responsible for serious crimes against humanity, such as those responsible for the genocide in Darfur. In addition, this vindictive law also restricts U.S. foreign aid to countries that support the ICC.

According to Richard Dicker, director of the International Justice Program at Human Rights Watch, "The states that have ratified this treaty are trying to strengthen the rule of law," but that the United States was "trying to punish them for that."

Similarly, William R. Pace, executive director of the Institute for Global Policy and convener of the global Coalition for the International Criminal Court, noted how "This Congressional action is part of a multi-pronged effort of the US government to undermine international justice, international law and international peacekeeping."

Much to the shock and dismay of many of her constituents, Clinton voted in favor of that Republican-sponsored amendment, which was immediately signed into law by President George W. Bush.

Even more disturbingly, this resolution Clinton helped become law also authorizes the president of the United States "to use all means necessary and appropriate to free members of United States military and certain other allied persons if they are detained or imprisoned by an international criminal court." Given that this presumably includes military force, the bill was quickly dubbed the "Hague Invasion Act."

Not surprisingly, there was widespread international criticism of the bill, particularly in The Netherlands. There, the foreign minister issued a formal protest and the Dutch parliament passed a unanimous resolution raising concerns about the authorization of the use of force, an action which would presumably involve armed confrontation with Dutch soldiers and police guarding the court complex. In addition to violating the UN Charter, such an attack would run counter to the NATO Treaty, to which both the United States and the Netherlands are also party.

Apparently, however, Clinton -- who has championed U.S. military intervention in over a dozen countries as a senator and Secretary of State and has spoken at right-wing rallies outside the United Nations protesting the world body -- has no problem with that.

Her position on the ICC places her well to the right of President Barack Obama, who supports the court, and closer to that of the Republican contenders for president. Ironically, it was President Bill Clinton who initially signed the Rome Statute establishing the court, yet another reminder that as president, Hillary Clinton would likely pursue an even more hawkish foreign policy than did her husband.

It's unclear why Clinton has so little respect for international law. Some claim it is because she feels a need to look tough in the face of possible Republican opponents who are even further to the right. More likely, however, it could be related to her advocacy of establishing closer U.S. military cooperation with a number of foreign leaders accused of war crimes who might conceivably find themselves under ICC indictment.

Whatever the motivation, should Clinton get the Democratic presidential nomination, supporters of international humanitarian law will not be left which much of a choice in the November election.

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Stephen Zunes

Stephen Zunes

Stephen Zunes is a Professor of Politics and International Studies at the University of San Francisco, where he serves as coordinator of the program in Middle Eastern Studies. Recognized as one the country’s leading scholars of U.S. Middle East policy and of strategic nonviolent action, Professor Zunes serves as a senior policy analyst for the Foreign Policy in Focus project of the Institute for Policy Studies, an associate editor of Peace Review, a contributing editor of Tikkun, and co-chair of the academic advisory committee for the International Center on Nonviolent Conflict.

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