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Dutch still wincing at Bush-era 'Invasion of The Hague Act'

Though largely symbolic, the law could be having lasting implications.

By Staff writer of The Christian Science Monitor / February 13, 2009

Target of invasion? At the International Criminal Court, shown here in January, the so-called Hague Invasion Act, passed by the US Congress in 2002, is seen as a 'bizarre symbol.'

Michael Kooren/AP

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The Hague

In 2002, Congress passed a law enabling United States forces to unilaterally storm into peaceful Holland to liberate American soldiers held for war crimes.

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Coming in the early days of the war on terrorists, and as the International Criminal Court was being formed here, the measure provoked controversy and seemed to the Dutch – stout US allies – an absurd example of America's "with us or against us" foreign policy.

The law is still on the books.

Formally titled the American Service Members Protection Act, the measure is widely and derisively known here as the Invasion of The Hague Act.

Odd as it may seem, the law allows the US to constitutionally send jack-booted commandos to fly over fields of innocent tulips, swoop into the land of wooden shoes, tread past threatening windmills and sleepy milk cows into the Dutch capital – into a city synonymous with international law – and pry loose any US troops.

Today, the Dutch mostly treat the issue as a joke, a cowboy American moment. But it is widely felt that if President Barack Obama's foreign policy team wants to achieve a symbolic break with the previous White House, it could rescind the invasion law.

As a Dutch Ministry of Justice official put it, "I wouldn't overstate how seriously we take this any more, but it does seem a bizarre symbol."

'Invasion Act' had little legal basis

In 2002, Dutch diplomat Harold DeWitt wrote to colleagues: "We are quite alarmed to hear about the impending invasion of the Netherlands. Our military is on high alert. We would really value you forwarding any news and relevant information as soon as it comes to your attention and, in particular, as it regards the timing. I would like to be able to notify my superiors … prior to any invasion."

The act was passed in the time between the Afghan and Iraqi wars. Pentagon officials wanted to avoid war crimes arrests by an untested world court – a body they feared might make anti-American political statements, rather than stick to its legal knitting.

In retrospect, jurists say, US officials over-read the power of the court. Under basic ICC rules called "complementarity," the ICC is powerless to prosecute war crimes the US is willing to investigate.

"The argument for The Hague Act was always very weak," says Mark Ellis, head of the International Bar Association in London. "Under the ICC statutes, if soldiers' [are charged with] war crimes, all the US has to say is that it is undertaking a good faith effort to investigate. That automatically sets aside ICC jurisdiction."

In the past six years, no US soldiers have been indicted by the ICC; and in cases such as Abu Ghraib, the US military has been willing to investigate.

In The Hague, the fury has subsided.

"The Dutch were a little bit offended. We consider ourselves the legal capital of the world, and your major ally not only threatens you, but tries to blackmail you," says Max van Weezel, a well-known political columnist and author. "If the Obama administration can reverse this law, we Dutch would think the Americans are becoming a little bit normal again. But I don't know if he can."

The court struggles to show viability

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