US War-Crime Immunity Gone

As of June 30, US citizens will no longer be immune to prosecution in the international court for war crimes. The deal brokered in 2002 expires on that date and the US evidently lacks the nine votes needed on a resolution to extend the immunity. According to Reuters:

No member is expected to veto or vote against the resolution but if more than six [out of 15] countries abstain, the measure would fail.

Not surprisingly, this is being reported as a major defeat for the US. The BBC report suggests that the opposition was more active and united than is apparently the case:

The BBC's Susannah Price at the United Nations says the move is a major climb-down for the Americans, who rarely face such united opposition on the Council.

She says the prisoner abuse scandal in Iraq and opposition from Mr Annan, helped persuade the majority of council members not to back the proposal. Blanket exemption is wrong. It is of dubious judicial value and I don't think it should be encouraged by the council

The UK was one of the few countries on the 15-member council that planned to back the resolution.

Even the Washington Times story has the following lead:

In a major retreat, the United States abandoned an attempt to win a new exemption for American troops from international prosecution for war crimes - an effort that had faced strong opposition because of the Iraqi prisoner abuse scandal.

Certainly this is not a favorable development for US diplomacy, but I am not convinced that it signals a major defeat. The problem, as is frequently the case with this administration, is that we were fighting the wrong battle. Our opposition should have been to the very concept of a permanent war crimes tribunal. The notion that citizens of any democratic nation can or should be tried by an international body not subject to democratic control is fundamentally flawed. And non-democratic nations will not have the respect for the rule of law to make such a court effective. In seeking to guarantee American exceptions, we only validated the concept in theory and made the current diplomatic result inevitable.

Several commentators have pointed out that this tribunal would only be a "court of last resort", operating when the nations in question are unwilling or unable to deal with the charges themselves. This would theoretically make it unlikely that citizens of Western nations would ever be prosecuted. But this argument does nothing to remove the objection, since only countries that were willing to abide by the international standard would be subject to its judgment.

One interesting theme that recurs through most of the coverage of the US withdrawal of this resolution is the notion that this would make the US more likely to veto UN peacekeeping operations:

The U.S. move raised concern that Washington might carry out its threat to shut down or stop participating in U.N.-authorized peacekeeping operations.
State Department spokesman Richard Boucher told reporters that every request would be examined "both in terms of voting for a peacekeeping mission" and providing Americans to participate. A key factor will be "what the risk might be of prosecution by a court to which we're not party," he said.

If this does in fact cause a widening of the rift between the US and the UN, it will be the only good result from any of this debate that I can see.