Time to repeal the ‘Hague Invasion Act’

Do you know who Thomas Lubanga Dyilo is?

Until this summer, I didn’t.

Then, on a rainy July day in the Netherlands, I sat 20 feet away from him. He never said a word; he only listened through the court-issued headphones to the translator who repeated in his native language the testimony against him. He displayed little emotion. If anything, the defendant appeared bored.

There was a glass barrier between us. He sat calmly. Watching his stoic posture, it was hard to believe that this man was guilty for the charges listed in the educational pamphlet that the International Criminal Court handed out to visitors.

Nevertheless, I was thankful for that barrier. It separated me from a defendant of war crimes, a man accused of conscripting and enlisting children younger than 15 into the Forces patriotiques pour la libération du Congo and using them to actively participate in hostilities in 2002 and 2003.

Lubanga’s Union of Congolese Patriots is responsible for the rape, murder and torture of thousands of civilians in Ituri, according to Human Rights Watch. The case against Lubanga also marks the ICC’s first trial since it was established under the Rome Statute in 2002.

Former President Bill Clinton signed the Rome Statute in 2000, but George W. Bush “unsigned” it just two years later, citing concerns for the sovereignty of U.S. courts.

Moreover, Bush passed the American Service-Members Protection Act, dubbed the “Hague Invasion Act” by many because it enabled U.S. troops to storm the peaceful Dutch Hague in order to liberate Americans or American allies being kept for war crimes. It also forbade government officials from cooperating with the ICC. 

The act had no legal basis; according to Article 17 of the Rome Statute, “the Court shall determine that a case is inadmissible where the case is being investigated or prosecuted by a State which has jurisdiction over it.”

The ICC acts as a court of last resort and is intended to prosecute the most abominable criminals in nations where the government is either unable or unwilling to seek justice. Because they uphold a functional justice system, the sovereignty of U.S. courts was never at risk.

Yesterday, the trial of Radovan Karadzic commenced. The former Bosnian Serb leader’s alleged crimes include ordering the massacre at Srebrenica of more than 8,000 Muslim men and boys and the three-and-a-half year siege of Sarajevo that resulted in more than 10,000 deaths.

If all goes according to plan, someone else will be sitting, watching Karadzic with unease from behind the glass, listening through their headphones to a translator’s account of the witnesses’ heinous stories against him, just as I did with Lubanga.

There is just one difference: Karadzic is not being tried in the ICC, but rather in the ad hoc Yugoslav tribunal set up temporarily for the sole purpose of crimes committed in the 1992-95 war in Bosnia. 

The ICC is necessary to set legal precedents and avoid ad hoc systems such as the Yugoslav tribunal that are set up only when necessary after atrocities. Individuals such as Karadzic and Lubanga, the world’s future war criminals, must know that one day they will certainly be brought to justice. This certainty is only guaranteed by a permanent body like the ICC.

Moreover, the American Service-Members Protection Act still stands on the books. And the Dutch (along with the rest of the international community) certainly still remember it.

The Obama administration should work to repeal this unilateral policy and resign the Rome Statute. Secretary of State Hillary Clinton has voiced regret that the United States is not part of the court. Moreover, the administration has said it will send a representative to the ICC review conference next year – something Bush refused to do.

These things are a step in the right direction, but they aren’t enough. The prosecution of the world’s most atrocious criminals and the protection of human rights call for the United States to stand behind the ICC by repealing the American Service-Members Protection Act and signing the Rome Statute.