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

In recent days, ICC prosecutor Luis Moreno-Ocampo has caused a stir in Israel by suggesting he may investigate alleged war crimes in Gaza. The Palestinian Authority continues to press the court to do so – with some 200 requests. Yet such an act is widely seen as dubious in legal circles. Neither Israel nor the Gaza entity is a signatory to the ICC. To investigate Israel for the Gaza attacks, the ICC would have to recognize Gaza as a state; moreover, both the prosecutor and the court would have to agree that it has jurisdiction in Gaza by such recognition.

"I don't think that legally [a Gaza trial] can be upheld, and politically it is dangerous for the court," Mr. Ellis says. "If the ICC were to push the boundaries of legal parameters, it risks looking political and that could harm its viability."

The US did not sign the ICC-enabling Rome treaty in 1998. President Clinton did sign at the end of his term, but President Bush repealed it. The Hague invasion act, passed under Sen. Jesse Helm's Foreign Relations Committee, calls for "all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by … the International Criminal Court."

Richard Dicker, of Human Rights Watch in New York, says the act was part of an "ideological jihad" inside the Pentagon. "Passing a law enabling America to invade an ally was a … belligerent but not realistic posture; the meaning of The Hague act was more symbolic in its virulence against the ICC."

A symbolic law's lingering impact?

It is not lost on diplomats here that in recent years the Netherlands has been one of the most resolute states not to accept detainees now housed at Guantánamo. Some speculate if this position could be due in part to lingering resentment from the 2002 law. It is also unclear whether Dutch troops will stay in Afghanistan past 2010.

One controversial offshoot of the invasion law is called "bilateral immunity" – a policy requiring all states except Israel, Egypt, Taiwan, and those in NATO to sign a waiver stating that they will contravene the ICC if any Americans are arrested. Countries that don't sign the waiver forfeit US military assistance. The policy pressured small states to comply – whether or not they felt it proper.

Kenya did not and lost US antiterrorism equipment in the years after the bombing of the US Embassy there. Trinidad-Tobago forfeited some drug-detection equipment. Secretary of State Condoleeza Rice stated in 2006 that the waiver policy was ill-advised; the US now supports the ICC, including a Security Council vote to investigate Sudan's President Omar al-Bashir.

Ellis suggests that Obama, a constitutional scholar, "realizes what this law means…. But we will have to wait to see how quickly [the new administration] can backtrack."

[Editor's note: The photo in the original version did not depict the International Criminal Court.]

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