The United States and the International Criminal
Court: The Choices Ahead
Sarah Sewall and Carl Kaysen*
Americans seeking to understand how
the United States should view the proposed International Criminal Court (ICC)
may well be confused by the opposing views dominating public debate about the
Court. Its most ardent proponents argue that the ICC is a key to world peace
and that America has nothing to fear from the proposed Court. On the other
hand, the most vehement opponents charge that the Court represents an emerging
world government that threatens American citizens, values, and leadership.
Neither view is correct, nor does the truth lie exactly in the middle.
U.S. policy choices toward the ICC represent tradeoffs. The
incontestably sound, assuredly effective, risk-free option does not exist. In
the real world, nations must balance a host of competing interests, costs, as
well as political factors. Our nation's most wise and inspiring policies also
reflected consideration of the long term, institutional, and systemic
consequences of a given course of action. Prudent policy cannot be based on
emotionalism or hyperbole, which is precisely the risk in the case of U.S.
policy toward the ICC.
The ICC is meant to ensure punishment of the worst individual
violators of international human rights. It is to be a forum in which a Saddam
Hussein or a Slobodan Milosevic could be help accountable—but only when the
relevant national judicial system is unable or unwilling to act. This is the
Court's intent. A key issue is how the Court will work in practice.
The ICC, which is likely to be formally created early in this
decade, will not be perfect. No institution, law, or individual judge can be.
The United States will assume a degree of risk if it chooses to join the Court,
for the ICC could conclude that the United States, in its own administration of
justice, had been unwilling to hold an American accountable for an egregious
international crime. No one can define the actual degree of risk because the
Court has not yet been established, and because the Court can change over time
(as we know from our own judiciary's history). Thus the arguments about risk
necessarily are conjectural.
However, it is worth examining various issues related to the
calculation of risk, for there appear to be three potential problems with the
United States’ approach to the Court. First, U.S. officials (and in particular
congressional critics) inflate, or take out of context, some potential risks
and costs posed by the Court. Second, it is not clear that the Administration
has considered fully both the specific and the overarching potential benefits
of an ICC. Third, the United States seems to underestimate the negative impact
that its position toward the Court has upon broader, longer-term American
security interests.
This essay represents an effort to assess the costs and benefits of
the US policy toward the Court. What follows is divided into four sections. The
first provides background on the ICC and summarizes U.S. views toward the
Court. The second describes the way the Court is supposed to work. The third
section examines the ICC in light of American national security interests. The
final section frames the choices facing the United States.
Background and U.S. Views
On July 17, 1998, representatives of 120 nations assembled in
Rome voted to create an International Criminal Court that would hold
individuals accountable for the most egregious international crimes—genocide,
war crimes, and crimes against humanity. Its purpose is to end the impunity
that mass murderers have enjoyed (and that some, like Uganda's Idi Amin and
Ethiopia's Col. Mengistu, still do) by providing a forum for prosecution when
national efforts fail.1 In some respects, the Court is a
logical culmination of two historical trends: the development of international
laws that protect individual human rights and the creation of international
institutions to advance widely shared objectives.
Moving Toward the ICC
International humanitarian law began to emerge in the late 19th
Century, broadening to embrace a variety of customary and treaty laws governing
the conduct of war. Enforcement of these rules was left to states, which
largely ignored them. After World War Two, the United States and its allies
decided to submit their captive enemies to the "judgment of the law" in what
the chief prosecutor Justice Jackson called "one of the most significant
tributes that Power has ever paid to Reason."2 The
Nuremberg Tribunal reflected the belief that "…one who has committed a criminal
act may not take refuge in superior orders nor in the doctrine that his crimes
were acts of state."3 It provided for the enforcement of
international humanitarian law at the level of the individual criminal.
The Nuremberg and Toyko Tribunals, however flawed they may have
been in practice, stood as the exceptions rather than the trend in enforcing
international humanitarian law. They nonetheless reinvigorated international
diplomatic efforts to create a permanent criminal court. But it was not until
after the Cold War ended that this work gained momentum at the United Nations,
and was then accelerated by the United Nations' creation of two new
international tribunals. The United States had pushed the United Nations to
create two ad hoc tribunals to address individual criminal actions in the
Former Yugoslavia conflict and the Rwanda genocide. The tribunals represented a
means of "doing something" in response to atrocities that the West pointedly
had failed to prevent; they offered a judicial means of enforcing international
norms that had been violated so flagrantly that they mocked the promise of a
post-Cold War era. The tribunals paved the way for the creation of a standing
institution to hold international criminals to account.
The Rome Statute establishing the ICC already has been signed by 98
nations, and ratified by 14. It is a virtual certainty that the Court will come
into existence within the decade. Yet the United States joined only 6 other
nations (including Iraq and China) in voting against the ICC's creation.
Despite the fact that the United States had stood behind the major
international criminal tribunals of the 20th Century, and despite
the strong U.S. record of support for international law and human rights, the
United States is virtually alone among its allies in opposing the ICC.
American Objections
The Clinton Administration supported early efforts to create an
ICC. The United States probably would have backed the Rome Statute had it
allowed for a state (or specifically a U.S.) veto over the Court's actions.4
But other nations argued that giving all or any states such a veto would
fatally weaken the Court. China could have blocked prosecution of Pol Pot;
Russia could preclude judicial action against Saddam Hussein. The majority of
states felt that even UN Security Council control over the Court constituted
external political control; they wanted a free standing, independent court to
ensure that international law would be applied equally, without political
favoritism. Thus the Rome Statute gave the Court a greater degree of
independence than the United States had sought.
The core Administration concern is that American citizens — and by
extension the American government and American foreign policy — could be
subjected to the judgement of an international body that the United States
cannot control. The government fears that the Court could become politicized,
not by states that might block the Court's freedom of action, but by activist
ICC judges and prosecutors who might overreach the Court's mandate. The
underlying issue is whether the Court would, in every case, respect U.S.
handling of an allegation, even if the United States decided not to prosecute a
case. The Statute specifies that the Court is intended only to "complement"
national judicial systems. That is, the ICC is to act only when national
judicial systems can't or won't — the failed state, the state still controlled
by criminals, the post-conflict state without a functioning legal system. The
ICC is not to assume the judicial functions of states with working courts. But
the Clinton Administration is concerned about whether the Court in practice
would respect national judicial systems.
The strongest ICC critics in the Congress are opposed to the
Court both in principle and in its specific incarnation at Rome. They view the
Court as part of a nascent system of world government and object to the notion
that Americans could be held accountable to any non-U.S. law or court. They do
not believe that the United States should participate in an effort to create
such an international institution, and their objections are rooted in a desire
to protect American sovereignty as they define it. This conception of
sovereignty, it is argued in the next section, is outdated; it has been
overtaken by events in the realm of judicial proceedings and international
politics. Nonetheless, many congressional critics see a permanent international
criminal court as an assault on U.S. freedoms and advocate no-holds barred
opposition to the Court, even if that opposition entails significant costs to
other U.S. goals.
Administration reservations about the specific workings of the
Court and widespread congressional opposition to the very concept of an ICC
appear to have significantly narrowed the terms of the debate in Washington.
The question now appears not to be whether the United States should join the
Court, but rather whether the United States will be able to co-exist with the
Court. The Administration is working to create a clear exemption for the
nationals of states that do not join the Court. Most ICC signatories reportedly
see little reason to create such an exemption, which appears designed to reward
non-signatories and undermine the concept that all individuals are subject to
the relevant international law. It appears highly unlikely that such a "fix"
will be attained in the coming months.
After the final diplomatic conferences close, the United States
will have to decide its policy toward the Court. Instead of contemplating
signature, the Administration is engaged in a dialogue with a Congress that is
urging hostile measures toward the nascent Court and the states that support
it. Other nations are, to put it mildly, perplexed that the United States
appears to have reversed its position of leadership on issues of international
justice.
How the Court Will Work
The ICC is intended to complement national judicial systems, acting
only where national judicial systems are unable or unwilling to consider
individual criminal responsibility for specific crimes. The Court is to act
only to the extent necessary to prevent impunity for the core international
crimes.
These core crimes are genocide, war crimes and crimes against
humanity.5 In the definitions (elements of crimes)
accompanying the Rome Statute, these crimes are surprisingly clearly defined,
thanks in large part to American negotiators.
The Statute places one additional crime — that of aggression —
under its jurisdiction. This would be problematic, particularly from the U.S.
perspective. Virtually any definition of a crime of aggression would infringe
upon UN Security Council prerogatives unless that definition specifically
recognized and preserved the UN Security Council's primacy in determining
international aggression. The Statute stipulates that the Security Council's
role will have to be addressed, but more importantly, that the Court cannot
assume jurisdiction over the crime of aggression until a definition is agreed
upon by two-thirds of the Parties to the Treaty. Given the historical
difficulties states have had in agreeing upon such a definition, agreement for
the purposes of the ICC seems unlikely to occur in the foreseeable future.
It is worth noting the extraordinary degree to which Americans, and
American legal practices, shaped the ICC. The international court necessarily
is a hybrid of common and civil legal systems. Yet American practices and
sensibilities had a disproportionate influence on the Court's rules,
procedures, and substance. American negotiators worked diligently and
effectively to shape the Court's contours; other nations, eager to have the
United States on board, went out of their way to accommodate many U.S.
proposals. However, the United States did not obtain an absolute guarantee that
Americans would be exempted from the ICC.
Nonetheless, a series of substantive and procedural thresholds
would have to be crossed before an American could be even investigated by the
ICC. While critics like to make the ICC sound like an overreaching Independent
Counsel, intent on prosecuting Americans conducting peacekeeping operations, it
is extremely unlikely that the United States would lose national jurisdiction
to the Court. After all, the Court's stated purpose is to ensure national
judicial action. But the very possibility of such an occurrence, however
remote, has so galvanized Court opponents that the actual degree of risk has
been forgotten. Perhaps only by walking through a scenario is it possible to
understand how remote is the possibility that American policymakers most fear.
Any criminal allegation against an American would have to involve a
core crime under ICC jurisdiction. Not simply a horrible act, but a crime of
the most serious concern to the international community. A genocide charge
against an American acting in an official capacity (e.g. a member of the armed
forces) seems impossible. An American might more conceivably be charged with
war crimes or crimes against humanity. The Court is to consider crimes against
humanity when they form part of a known widespread or systematic attack against
civilians, and war crimes "in particular" when part of a plan or policy, or as
part of a large-scale commission of war crimes. These thresholds in effect
require that any individual American actions be part of a larger process of
intentional human rights violations. Bombing targets that were presumed
to be legitimate, even if it resulted in civilian casualties, would not fall
under these definitions.
If an American's alleged criminal actions did fall within the
Court's jurisdiction, a state could refer a case to the ICC or the ICC
Prosecutor could initiate an investigation (with the approval of the Pre-Trial
Chamber).6 The state in which the crime allegedly was
committed would have to accept ICC jurisdiction. The ICC Prosecutor would then
be required to notify the United States of its intent to commence an
investigation. The United States would have a month in which to inform the
Prosecutor of any American investigation of the case. The Prosecutor would be
required to defer to any U.S. investigation—and respect a U.S. decision not
to proceed to prosecution—unless a Pre-Trial Chamber nonetheless authorized the
investigation.
This is the procedural nub of American concerns – the ability of
the Pre-Trial Chamber to overrule a U.S. claim to handle a case. This is the only
circumstance in which the stated fears of the United States might be realized.
For this to occur, a majority of Judges would have to determine
that the United States "is unwilling or unable genuinely to carry out the
investigation or prosecution." Since America’s literal ability to administer
justice is unquestioned, the ICC’s judgment would hinge upon "willingness." The
terms are further defined in the Statute: unwillingness can be found only where
the proceedings or decision not to prosecute were intended to shield the person
from criminal responsibility, where there has been an unjustified delay
inconsistent with an intent to bring the suspect to justice, or where the
proceedings were not independent or impartial and were conducted in a manner
inconsistent with an intent to bring the suspect to justice.
In other words, the United States would either have to be so biased
that it could not evaluate the question of international crime, have no
intention of investigating the claim, or be investigating only to protect an
individual. The seriousness with which the modern U.S. military justice system
treats international humanitarian law makes this a virtual impossibility in the
case of a military investigation. Moreover, actions – official or unofficial –
of a U.S. citizen that approached the gravity of an international crime would
be addressed within the American judicial system. One can disagree with the
results of U.S. military justice proceedings with regard to the My Lai
massacre, but the ICC would not have had a role in the case. It is difficult to
envision ICC judges concluding that the United States was unwilling to pursue
allegations of egregious international criminal violations by Americans.
Yet such a scenario, in theory, is possible.
This is why American officials express concern about a
"politicized" Court. Critics presume ICC officials could be intent on
undermining U.S. foreign policy regardless of the Court's purpose or rules.
This is why the Administration sought a procedural guarantee that the United
States could exempt Americans from ICC jurisdiction. The problem is that the
pursuit of such an exemption runs contrary to the Court’s central purpose: to
hold all individuals accountable for massive international crimes. There
is a significant tension between the specific U.S. concern and the broader
objectives of the Court.
The ICC and American National Security Interests
In joining the Court, states agree to be bound by a process with
defined rules but no guarantees with regard to a specific case or interest.
States accept a degree of risk in order to advance a larger goal of ending
impunity for the worst international criminals. The central issue for the
United States remains whether the risks inherent in joining the ICC are
outweighed by the Court's potential benefits.
Other leading powers, allies including Germany, France, and the
U.K., shared many U.S. concerns about the Court. Our allies have similar
reasons to be concerned about the Court's ability to judge the actions of their
nationals, particularly with regard to the use of force. These states, like the
United States, consider themselves to have global responsibilities. They deploy
forces beyond their borders and participate in a broad range of peace
operations and interventions. They, too, have weaker enemies that often seek
advantage through asymmetrical responses ranging from terrorism to political
campaigns designed to undermine the legitimacy of the leading powers' actions.
Yet during the Rome negotiations regarding the ICC, these states
became satisfied with the tradeoffs inherent in joining the Court (including,
in the case of France, the need to amend its Constitution). They joined with
the United States to insert additional safeguards and clarifications regarding
the Court's workings, and they then concluded that the Court's larger value
outweighed any residual risks it might pose to their nationals or foreign
policy. The United States was not exceptional in its initial reservations; it
was exceptional in its ultimate conclusion that the Court wasn't worth joining.
United States policy toward the Court—whether or not it decides to
join—entails tradeoffs involving a wide array of issues including
constitutional protections, sovereignty, the use of force, the pursuit of
justice, the rule of law, and the quality of American leadership.
Constitutional Protections
Because the international Court reflects a mix of common and
civil law traditions, it lacks the requirement of a trial by jury and other
cherished U.S. Constitutional protections for the accused. Some of the most
emotional arguments offered against the ICC revolve around this compromise: the
ICC simply does not feel constitutional. Yet even in an Administration
skeptical of the ICC, the Justice Department has ruled that there are no
constitutional barriers to joining the ICC.
The constitutionality issue is best evaluated by means of
comparison. For actions that occur abroad and otherwise would fall within
foreign national jurisdiction, ICC proceedings should be compared with those of
a foreign state, not an American court. Americans abroad are subject to the
jurisdiction of foreign courts; the Constitution does not travel with them.
Individuals already face the possibility of foreign prosecution for ICC-covered
crimes. General Pinochet discovered this principle with some surprise. And
depending upon a nation's political motivation and legal system, foreign
judicial proceedings may be far less hospitable to American constitutional
principles than an ICC will be.
Another point of comparison is extradition of American citizens for
trial abroad. This has been common practice for two hundred years, established
by treaties in which the United States has delegated the trial of Americans to
foreign states. The ICC can be viewed as another type of court to which the
prosecution of Americans is delegated, and, again, in many cases the ICC will
feel far more similar to a U.S. court than a foreign court.
A third comparative basis for judging the ICC’s constitutionality
is the American military justice system. American service members are subject
to courts martial that employ fundamentally different procedures than those
available in a civilian court. Some of the most cherished American rights (e.g.
trial by jury) do not extend to active duty members of the Armed Forces.
Having an ICC might actually benefit an American citizen. The ICC
could be, for both legal and political reasons, a welcome alternative to trial
in a foreign country. Serbia's Milosevic was most obliging when three Americans
were seized in Kosovo; but had the timing been different, so too might have
been his calculation of interest. A rogue state that captured an American
soldier or pilot might refuse to return him to the United States. Having the
ICC as an alternative venue might provide a face-saving alternative to
provoking a crisis, and, given complementarity, also might be the most
expeditious means to bring the American home. Alternatively, the United States
might find it useful to suggest that foreign criminal suspects be tried in an
ICC rather than engaging in protracted wrangling over the venue as was true of
the dispute with Libya over where to try the Libyan suspects implicated in the
Pan Am bombing over Lockerbie.
Thus the "costs" of supporting the ICC — in terms of compromising
constitutional protections — are little different than the costs incurred in
establishing a different system of justice for members of the military, or
reaching extradition agreements with foreign countries, or travelling abroad as
an American within the jurisdiction of a foreign judicial system. The ICC poses
no qualitatively new or different risks in this regard.
Sovereignty
Many opponents are concerned that the ICC is part of an
incipient system of world government, a tool in the hands of hostile
individuals and states, that will seek to inhibit America's freedom of action,
particularly with regard to the use of force. Preserving American sovereignty,
they argue, requires opposing the Court.
The emotional appeal of the argument is strong, but what is it
really about? It revolves around two different issues: one, the inherent
corruptibility of institutions and two, specific concerns about prerogatives
regarding the use of force.
The ICC is an institution, created by international treaty. There
are many such institutions, and in the post WWII period, the United States
designed most of them. In many, the United States wielded disproportionate
formal power (the World Bank), or even a veto (the United Nations Security
Council). For a variety of reasons having to do with changes in international
politics and norms, emerging new institutions evade direct control of a single
state. But the ICC is not unique in this regard; the World Trade Organization
is the latest such entity. The ICC's current mandate is not newly created: its
purpose is to enforce specific pieces of existing international law, law that
was developed and supported by the U.S. government. Foreign states already can
enforce these laws against Americans. There is nothing untoward about the
Court's creation or current mandate.
The history of ICC negotiations does show that the United States
needs to develop a more proactive and timely approach to participating in
multilateral diplomatic negotiations. Greater U.S. clarity of objectives and
coordination of effort might have avoided acrimony and resulted in compromise
more acceptable to the United States. It is worth noting that the ICC’s
Assembly of State Parties has the potential in effect to legislate new
international law (i.e. defining aggression, adding new "crimes"). This is
troubling, but all the more reason for the United States to participate in the
Court and become more adept at so-called conference diplomacy.
The ICC, on its face, has nothing to do with limiting the
sovereignty or freedom of action of the world's leading power. The United
States does not intend to promote or condone the criminal activity under the
Court's jurisdiction. As Canadian Foreign Affairs Minister Lloyd Axworthy
recently put it, "This is not some kind of rogue institution that will target
some American GI. Americans have nothing to fear. It's only the likes of
(Bosnian Serb leader and accused war criminal) Radovan Karadic who need worry."7
But Court opponents question how the ICC will act in practice.
They fear that once the legal mechanisms are established, they could be
hijacked for political purposes. In fact, the United States should expect that
hostile states will attempt to use the Court to achieve political objectives,
just as they would seek to exploit other forums. The Court's judges and
prosecutors will expect politically motivated allegations; their responsibility
will be to evaluate the charges objectively.
Concerns about politically biased, corrupt, or incompetent
officials are common to each new institution, national or international. At
some level, every political institution requires a leap of faith about human
capacities. Politicization of the Court would quickly end its relevance, and
the leading powers behind the Court are well aware of the need to ensure the
highest integrity and impartiality of ICC officials. More practically, the ICC
Statute seeks to address these fears by delineating the qualifications for
judges and prosecutors, the processes by which they are selected, and the means
by which they can be dismissed by the states that are parties to the Treaty.
The Use of Force
American officials have indicated that the existence of the ICC
(because it claims jurisdiction over individuals even if their government is not
a party to the treaty) might dampen U.S. military participation in certain
contingencies. The Administration fears that an ICC could question the legality
of actions by American troops or military and political leaders. This
additional risk, they imply, could preclude U.S. military action on behalf of
non-vital interests, such as humanitarian or peace operations.
It is important to be clear about what the Court can and cannot do.
The potential threat from the ICC is a symbolic challenge to American
decisions about the use of force. The ICC will have no independent enforcement
powers; it cannot compel even the weakest states unless the UN Security
Council, in which the United States has a veto, decides to do so. Apprehending
suspects will fall to states, which already have the authority to apprehend
suspects within their borders. The ICC will have power that is derived from its
moral and legal authority. It is a different sort of power than that usually
evoked by ICC critics, and the power will will hinge upon the Court's
credibility, the consistency, transparency, and objectivity of its actions.
If the ICC were to be captured by hostile political forces and
repeatedly inject itself into issues beyond its mandate, it would be
problematic for the United States in a variety of ways. An American President
might decide to undertake internal investigations of actions that already had
been judged to be legal, simply in order to ensure that the ICC would not
consider the case.8 If the Court challenged a U.S. ruling
on the grounds that the United States was unwilling to pursue justice, the
Court would pose a political challenge.
Challenging the capability or intent of the U.S. justice system
would occur only if the Court were acting fundamentally contrary to its
mandate. Such a departure is highly unlikely for several reasons that go beyond
the self-interest that Judges and Prosecutors would have in maintaining the
Court's integrity and legitimacy. First, the scope for interpretation of law
was narrowed significantly during the ICC negotiations. The United States
feared that the legitimacy of its military actions could be undermined by an
ICC raising questions about the American use of force, particularly with regard
to issues such as the proportional use of force, the legitimacy of targets, and
civilian casualties.9 The United States did a remarkable
job in the ICC negotiations of specifically defining the individual "elements"
of these crimes that would have to exist for criminal liability to be
established.
In addition, the International Criminal Tribunal for Former
Yugoslavia (ICTY) already has provided a precedent with regard to the most
potentially contentious issues concerning the U.S. use of force. In an example
of just what the United States fears with regard to ICC jurisdiction over
American action, the ICTY had jurisdiction over Serbia and Kosovo at the time
of the 1999 NATO bombing. The ICTY Prosecutor, in response to requests from
private parties, directed her staff to provide an internal assessment of NATO's
actions. While the Prosecutor specifically denied that the tribunal was
launching a formal investigation, the ICTY submitted a raft of questions to the
Pentagon and other relevant actors, stirring up internal controversy about the
legitimacy of the tribunal's actions. Yet the Prosecutor concluded that "there
was no deliberate targeting of civilians or unlawful military targets by NATO,"
and that there was "no basis for opening an investigation into any of those
allegations or into other incidents related to the NATO bombing."10
This was not a peacekeeping or humanitarian operation; it was a coercive
bombing campaign in which hundreds of civilians allegedly died as a result of
the coercive use of force.11 Yet even in this case, an
international tribunal reasoned with transparent logic that mistakes or
unintended consequences do not constitute war crimes.
Finally, if Court opponents are concerned that the ICC could become
a tool for undermining U.S. foreign policy, they should understand that U.S.
opposition to the Court has a similar effect, not just among enemies, but among
American friends and allies.
Justice
International courts and tribunals can be a useful tool for
advancing both specific American objectives regarding a particular conflict and
overarching international legal and security goals. Since Nuremberg, the United
States occasionally has supported international tribunals as a means of
punishing those responsible for genocide and war crimes. United States
officials have noted the importance of holding individual perpetrators of gross
abuses accountable for their crimes.
Prosecuting individuals, rather than governments, is important for
several reasons. First, it sets precedents that must become part of the
calculation of political and military leaders. The threat of prosecution also
may force individuals throughout the entire chain of command to take greater
responsibility for their actions. If, over time, victor's justice is replaced
by the enforcement of international law, criminal activity will become more
costly and possibly less likely.
The ICC probably will prove unable to prosecute criminals that
cling to power within states or take refuge in states willing to provide
protection. But even if the Court cannot reach criminals, its indictments would
affect them. Indicted individuals would fear traveling abroad to shop, seek
medical treatment, raise funds, or otherwise enhance their personal and
political standing. More importantly, the ICC's spotlight can isolate and
discredit gross human rights violators, potentially undermining their local
support and limiting their ability to cause further harm. These are modest
benefits, but they are real.
International tribunals can also make a contribution simply by
compiling a definitive historical account of criminal actions. Truth-telling
can mitigate forgetting and the creation of historical fiction. International
judicial proceedings also help transfer culpability from groups to individuals
thereby helping to prevent recurring cycles of violence.
Skeptics may remain unconvinced that prosecuting foreign mass
murderers or war criminals is related to U.S. national security. They will
argue that U.S. interests are unaffected by most mass atrocities occurring
abroad, and that when atrocities do matter, the United States will address them
directly. Only in the most superficial sense is this true.
The United States is affected in some measure by the dissolution of
responsible government structures and the spread of violence worldwide. The
effect can be multidimensional, affecting American trade and investment,
military security and access, or political objectives. Mass atrocities almost
always have wider regional security repercussions such as expanded armed
conflict, massive refugee flows, and arms trafficking and organized criminal
activity. Crises fueled by gross violations of international law will continue
to occupy American attention.
Furthermore, the lines between security interests and normative
interests are blurring. When mass atrocities dominate the media, or when
tyrants push too far, democratic societies may choose to stop them partly or
purely for moral reasons. Some NATO leaders called the Kosovo operation a human
rights intervention; American government officials deemed it in the national
interest. The reality is that Western nations are likely to be pushed or pulled
into responding to mass atrocity at least occasionally.
A standing ICC will symbolize an ongoing and nearly universal
commitment to prosecuting those who commit gross human rights abuses. And it
should be more effective than past ad hoc tribunals because it will have a
continuing existence — staff, offices, procedures, precedents, etc. It
therefore should be able to respond more swiftly and effectively to allegations
of criminal acts. Furthermore, the nations that have ratified the ICC Statute
have made a commitment to support the Court.
The ICC also enjoys enhanced legitimacy by virtue of its widespread
political support — it cannot be seen as a politically-motivated creation of
the UN Security Council. Nonetheless, this widespread support may prove to be a
weakness if the Court does not obtain adequate political, financial, and
military support from key nations, which often will determine the quality and
timeliness of ICC investigations and prosecutions, not to mention the Court's
ability to actually gain custody of the accused. The Court's true capabilities
and effectiveness will hinge upon the policies of the world's leading powers,
and particularly the United States.
Finally, the United States must recognize that it cannot dismiss
the ICC and then seek to create future ad hoc tribunals. UN members will not
countenance creating additional new courts that duplicate the function of the
ICC. In the future, the option of punishing individuals responsible for mass
atrocities will be either national courts or the ICC. Rejecting the ICC
probably means rejecting any future international tribunals to prosecute
the most egregious human rights abusers.
Rule of Law
The ICC cannot be judged only on the basis of its own strengths and
weakness. It also should be placed in the larger context of a world shaped by
law. United States foreign policy has consistently stressed the value of
international law in creating a world more congruent with U.S. interests. Even
in the realm of security, where it is tempting for a superpower to rely on
unilateral, and predominantly military means, the limits of such action are
increasingly clear. Efforts to regulate and fuel the global economy, protect
the environment, manage weapons proliferation, and defend against terrorism all
rely upon an international legal framework; they cannot be achieved
unilaterally.
Every new international legal instrument or institution has
entailed obligations and required concessions of some form. The price of the
accommodation can be far outweighed by the benefits of both the specific
institution and the expansion of a legal framework hospitable to American
interests and values.
An essential element of that legal framework is the idea of
equality under the law. Seeking an exemption from that principle weakens any
claim to champion the international rule of law. The U.S. position regarding
the ICC is problematic in this regard.
American Leadership
The U.S. attitude toward the ICC is linked to both domestic and
international perceptions of the legitimacy of American leadership. Joseph Nye
has written about the sources and importance of "soft power" even for states
possessing a surplus of economic or military might. A state that relies upon
the power of its political ideals can only stray so far from those ideals
without losing the ability to inspire confidence internally and
internationally. The United States has been a leader in promoting human rights;
the ICC will be the ultimate symbol of their enforcement. By helping infuse
American foreign policy with moral significance, the ICC may help sustain
domestic support for continued national engagement in international affairs
from a public that intuitively seeks a foreign policy that is congruent with
its deeply held values.
The U.S. position toward the ICC also has international
ramifications.12 To the majority of states, including
many of our closest allies, the ICC represents an acid test of America’s
commitment to international and universal concepts of justice and
human rights – its willingness to be bound by the rules it establishes for
others. American reluctance to back the Court, indeed the U.S. threat to become
a "spoiler", undermines to some degree the U.S. ability to sustain the
international relationships that are critical for future American security and
prosperity.
Choices Ahead
The United States faces important choices with regard to the ICC
after completing the final rounds of follow-on negotiations. The options below
are not exhaustive or mutually exclusive. The President could sign the Statute
to signal U.S. support for the Court's aspirations and the values it embodies.
The President could then either present the Treaty to the Senate for advice and
consent or could defer action until the Court had had the opportunity to prove
itself. The United States could support the Court financially, or by providing
information or other forms of cooperation, and it could do so even on a
case-by-case basis. The United States could ignore the Court. The United States
could actively oppose the Court.
As a political issue, the ICC’s reach will extend to Americans
regardless of the U.S. posture toward the Court. The Administration once argued
that the Court could not exercise jurisdiction over Americans if the United
States were not a party to the Treaty. But this argument ran counter to
U.S.-created precedent regarding other internationalized crimes such as
terrorism and hijacking. The United States continues to seek reassurance that
the ICC will not exercise jurisdiction over nationals of a non-party state
without that state's consent. The Treaty's jurisdictional anomalies appear
designed to encourage states to join the Court;13 it is
unclear why other nations would create an exemption that could be exercised by
Slobodan Milosevic or Saddam Hussein. Given that the Court has asserted
jurisdiction over all states, American claims to be exempt will not affect the
Court's actions. Thus, there appear to be virtually no practical (versus
rhetorical) advantage to not participating in the ICC. On the contrary, there
seem to be increased costs.
Active opposition or benign neglect would be unlikely to destroy
the ICC. But either course of action almost certainly would render the Court
less effective in prosecuting international criminals. Key congressional
leaders have recommended that the United States adopt a hostile policy toward
the ICC and the states that join it. Congress already has prohibited the use of
federal funds to support the Court. Proposed legislation would penalize other
nations that join the ICC and bar the United States from certain UN operations
without specific guarantees with regard to ICC jurisdiction. While Congress had
to exempt major allies from the proposed sanctions (it would have affected
relations with too many key states), the Administration objects both to the
potential impact on relations with other states and to congressional
micro-management of Presidential prerogatives. As one Administration official
puts it, Congress' approach would "hold national security and foreign policy
interests hostage to the fate" of these issues pertaining to the ICC. The
overreaction embodied in such legislative proposals would be counterproductive,
costing the United States far more than it could gain. In addition, they will
not change anything in the ICC Statute or the Court's eventual effort to
fulfill its mandate.
As a purely pragmatic matter, there are stronger arguments for
joining the Court in order to shape it from the inside, as the United States
has done in the case of other major international institutions. If the United
States joined the ICC, it could help nominate, select and dismiss ICC Judges
and Prosecutors, helping ensure the competence of those who will carry out ICC
responsibilities. Becoming a State Party also would allow the United States to
participate in efforts to define the crime of aggression, or any potential new
crime of ICC jurisdiction. And while the United States could not control the
Assembly of States Parties, America’s influence certainly would be stronger if
it supported the institution. Even ICC skeptics should be able to see that
practical American interests are better served by engaging, not fighting, the
Court.
Conclusion
The United States appears so focused on the negative aspects of an
ICC that it has almost lost sight of both the Court’s potential value and the
costs of American estrangement from the ICC.
The potential benefits of encouraging international justice seem
more likely to be realized than the nightmare scenario of an overreaching ICC
upon which U.S. objections are based. The sooner the United States is able to
work constructively to guide the Court, the better served national interests
will be — buttressing American claims to international leadership and
strengthening a new mechanism to directly and indirectly advance U.S. national
security objectives.
Footnotes:
1. The ICC Would have jurisdiction over individuals, not states.
The International Court of Justice has jurisdiction over states.
2. Robert H. Jackson, "Opening Speech for the Prosecution at
Nuremburg," (21 November, 1945).
3. Trial of Major War Criminals Before the International Military
Tribunal, Official Documents, (Nuremburg, 1947).
4. The United States supported several options on this theme:
requiring tht the state of nationality consent to prosecution of a suspect;
requiring that the United Nations Security Council (where the U.S. has a veto)
act to initiate any ICC proceedings; allowing a state to assume responsibility
for individual actions; and requiring negotiation of an agreement with the UN
regarding the circumstances under which a suspect could be transferred to the
ICC.
5. The use of nuclear, chemical, or biological weapons was
specifically excluded from the jurisdiction of the ICC.
6. The third route to the Court, a UN Security Council referral,
presumably would be blocked by the U.S.
7. Mike Blanchfield, "Axworthy Counsels Albright: World
Criminal Court Not Interested in U.S. Soldiers," The Gazette (Montreal)
June 17, 2000
8. This would be problematic for military morale and civil-military
relations. See William Nash, "The ICC and the Deployment of U.S. Armed
Forces," in The United States and the
International Criminal Court: National Security and International Law,
Sarah Sewall and Carl Kaysen, eds., (Boulder, Colo.: Rowman and Littlefield,
September 2000).
9. U.S. officials are less concerned with genocide charges than
challenges relating to the laws of war or crimes against humanity, which could
apply to the use of conventional military power in a variety of circumstances.
10. Barbara Crossette, "U.N. War Crimes Prosecutor Declines to
Investigate NATO," New York Times, June 3, 2000
11. See Human Rights Watch, "Civilian Deaths in the NATO Air
Campaign," Vol.12, No.1 (D) February 2000; and Amnesty International,
"Collateral Damage or Unlawful Killings?," June 7, 2000.
12. For a summary argument regarding global reaction to American
dominance, see Peter W. Rodman, "The World's Resentment, Anti-Americanism
as a Global Phenomenon," The National Interest, No.60 (Summer
2000), pp.33-41. Examples of European Concern regarding to the U.S. position
toward the ICC range from Martin Kettle, "Judge, Jury, and Executioner on
Human Rights, but Never in the Dock," Manchester Guardian Weekly,
June 28, 2000 to the August 5, 2000 editorial in The Economist entitled,
"Engage and Prosper."
13. Examples include the right of State Parties to opt out
initially of ICC jurisdiction over certain crimes.
Credits:
*This essay is a result of a project sponsored by the Committee on
International Security Studies of the American Academy of Arts and Sciences.
The authors wish to thank the John D. and Catherine T. MacArthur Foundation and
an anonymous donor via Rockefeller Financial Services for generously supporting
the study. The 1998-1999 project led to the publication of a full-length,
edited volume, The United States and the
International Criminal Court: National Security and International Law
(Boulder, Colo.: Rowman and Littlefield, September 2000). The study group
participants each contributed to the volume. While the analyses in the chapters
of the volume are drawn upon here, the views expressed in this essay are those
of its authors alone.
About the Authors
Carl Kaysen is Co-chairman of the Committee on International
Security Studies at the American Academy of Arts and Sciences and the David W.
Skinner Professor of Political Economy at the Massachusetts Institute of
Technology. He is a member of the Security Studies Program at MIT. Professor
Kaysen served as a Deputy Special Assistant to the President for National
Security Affairs from 1961 to 1963. He has written and lectured on a variety of
arms control and security topics.
Sarah Sewall is the Programs Director of the Carr Center for
Human Rights Policy at the John F. Kennedy School of Government, Harvard
University. She was the asociate Director of the Committee on International
Security Studies at the American Academy of Arts and Sciences from 1998-2000.
She served as Deputy Assistant Secretary of Defense for Peacekeeping and
Humanitarian Assistance from 1993-1996. She was Senior Foreign Policy Advisor
to Senator Majority Leader George Mitchell from 1987-1993. She also has been a
visiting scholar at the Harvard Program on Negotiation as a Council on Foreign
Relations International Affairs Fellow, worked as a defense analyst at several
Washington, D.C. organizations, and taught international affairs for Stanford
University.
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