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

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

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

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.]