An Introduction To The International Criminal Court - Institute for ...

creation of the court 23
Timor if there was no immunity. 72 The debate erupted as the Council was
about to renew the mandate of its mission in Bosnia and Herzegovina. Even
with the proposed resolution, United Nations peacekeepers, as well as the
much larger contingent of United States armed forces and those of other
States that belong to the NATO-led Stabilisation Force (SFOR), remained
subject to the jurisdiction of the International Criminal Tribunal for the Former
Yugoslavia. The United States was really concerned about other parts
of the world. The blackmail succeeded, but to outraged protests from many
States, including Germany and Canada.
Finally, on 2 August 2002, President Bush signed into law the American
Service Members’ Protection Act. Referring to the Rome Statute, the preamble
to the Act declares: ‘Not only is this contrary to the most fundamental
principles of treaty law, it could inhibit the ability of the US to use its military
to meet alliance obligations and participate in multinational operations
including humanitarian interventions to save civilian lives.’ The Act prohibits
agencies of the United States government from cooperating with the
Court, imposes restrictions on participation in United Nations peacekeeping
activities, prohibits United States military assistance to States Parties to
the Statute, and authorises the use of force to free any United States citizen
who is detained or imprisoned by or on behalf of the Court. 73 It was soon
christened the ‘Hague Invasion Act’ by its many critics who imagined a scenario
of the Marines landing on the beaches of Scheveningen in an attempt
to rescue some latter-day Henry Kissinger.
These developments have actually proved to be little more than squalls,
andtheCourthasweatheredthemwithoutmajormishap.Attimes,itseemed
as if opposition from the United States only enhanced the enthusiasm of
other countries for the Court. Moreover, the United States now seems to
have run out of ideas as to how to attack the Court. Its two serious challenges
have had the relatively limited effect of sheltering American nationals
in what are only a handful of countries with relatively insignificant expatriate
populations, and of immunising troops in United Nations-authorised
missions. If this is the worst that the United States can throw at the Court,
the institution cannot be in any great danger.
72 Colum Lynch, ‘US Seeks Court Immunity for E. Timor Peacekeepers’, Washington Post,16May
2002, p. A22; Colum Lynch, ‘US Peacekeepers May Leave E. Timor’, Washington Post, 18May
2002, p. A20.
73 Sean D. Murphy, ‘American Servicemembers’ Protection Act’, (2002) 96 American Journal
of International Law 975.