The ICC and the Deployment of U.S. Armed Forces
William L. Nash
In all likelihood, President Bill
Clinton's goal of creating an International Criminal Court (ICC)l
will be achieved, but without the participation of the United States -- or
China, Iraq, Israel, Libya, Qatar, and Yemen. Over active U.S. opposition, a
large majority of nations -- including close U.S. allies -- voted in July 1998
to support the establishment of an ICC. Since that vote, governments have set
in motion the political and legal processes that seem likely to lead to the
Court's establishment.
This chapter begins by reviewing some key characteristics of
current U.S. uses of force that help explain the U.S. position toward the
Court. It then considers the underlying Pentagon concerns about the ICC,
exploring its potential impact on the use of military force by the United
States-both during the decision-making process and in the execution of a
military operation. The chapter concludes that the impact is likely to be less
than Court opponents predict. U.S. military concerns must be placed in
perspective, realistically evaluated both in terms of their likelihood and in
the context of today's requirements for effective U.S. leadership. From that
perspective, American servicemembers and national interests are better served
by joining the Court and helping it fulfill its stated purpose-prosecuting
individuals who commit the most egregious international crimes.
U.S. Leadership and the Use of Force
To begin this examination, it is important to understand the
current environment in which the United States deploys force. The United States
is the predominant military force in the world today. It enjoys a position of
dominance that is perhaps unequaled in world history, and it is the only nation
with the capability to project power throughout the world and, with few
exceptions, to achieve regional dominance at any place of its choosing. In
addition to physical dominance, the United States has unmatched superiority in
its doctrine, leadership, intelligence, logistics, and communications that,
when combined with its ability to strike opponents from long, over-the-horizon
distances, would leave a potential enemy with little military recourse in a
direct confrontation.
The United States has demonstrated a willingness to use its
military power - lethal and nonlethal - to an unprecedented degree in the past
decade. The U.S. Army estimates that its operational tempo has increased by
three hundred percent as it has responded to over twenty real-world
contingencies (compared to seven during the entire Cold War). All services have
reported recruiting and retention problems partially attributed to the
increased pace of training and to operational deployments. This has occurred in
the absence of a peer competitor to the United States.
U.S. deployments in the post-Cold War era have been in the national
interest, but not a narrowly defined interest. From Saudi Arabia to Somalia,
from Haiti to Iraq to Bosnia, the United States has acted on behalf of both
vital national interests and values that traditionally fell outside that
definition. Moral imperatives, largely humanitarian in nature, often lay behind
U.S. decisions to act militarily since the fall of the Berlin Wall. Some have
gone so far as to argue for a new understanding of "national" interest. Vaclav
Havel, president of the Czech Republic, said of the intervention of the North
Atlantic Treaty Organization (NATO) in Kosovo, "It is fighting in the name of
human interest for the fate of other human beings.... This war gives human
rights precedence over the rights of states."2 Although it
is not my purpose to argue for such a policy, it is clear that the use of
American military power has not declined with the dissolution of the Soviet
Union, nor is it likely to decrease in the years ahead.
Judging from recent experiences, the contemporary use of force by
the United States is likely to have several characteristics. The first is that
the United States will seek to shape the political and legal context within
which force is used. U.S. leadership is stronger, and its military actions more
effective, if the international community provides an endorsement of U.S.
actions. One of the reasons behind the success of Desert Shield/Desert Storm
was the unequivocal support from the international community through a U.N.
Security Council resolution (and ultimately the U.S. Congress and public).
Wherever possible, the United States has sought international sanction for its
military actions. Failure to achieve such support has not precluded military
action-the air campaign in Kosovo lacked formal international approval
(although this action created a precedent that the United States may regret
when applied by other nations). The ability of the United States to win
international endorsement of its use of force is affected by many factors,
which will be discussed later in this chapter. Political and legal support from
the international community is useful for a variety of reasons, not the least
of which is that it enhances the prospect of assembling a strong coalition
effort.
In fact, most recent U.S. interventions have been undertaken with
other nations. Whether it is a "coalition of the willing" as in Desert Storm or
a formal alliance operation as in Kosovo, the United States has chosen to build
and to lead a coalition. This approach reflects the desire to enhance the
legitimacy of force and to share the costs and the risks of intervention.
Coalition operations are normally difficult, and often contentious. The United
States will be faulted if it fails to take the lead, but it will be equally
faulted if its leadership is perceived as arrogant and insensitive to other
nations' prerogatives.
The second characteristic of interventions today is that they fail
to achieve success if addressed solely by military means. Political, economic,
and social challenges dominate the ultimate, and often the short-term, success
of larger interventions. In fact, with the exception of Somalia, military
successes have come quickly of late. In Bosnia, NATO forces completed the
military tasks prescribed in the Dayton Accord within 120 days. Civilian
implementation addressing the political, economic, and social woes of the
country continues to this day. The prospects in Kosovo look no better. As of
this writing, no significant recent interventions have been concluded
successfully.3 The ultimate success of such efforts hinges
on actors and institutions other than the U.S. military. In most instances,
success will not be the sole responsibility of the United States; it will be
the result of combined efforts of international and regional institutions
ranging from the World Bank to the U.N. High Commissioner for Refugees, as well
as regional organizations, nongovernmental organizations (NGOs), private
businesses, indigenous political institutions, and local and national
leadership. Catalyzing, promoting, and helping to coordinate the nonmilitary
elements of an intervention are much easier and more likely to succeed if the
initial military intervention has been regarded as legitimate.
Thus U.S. military power is more effectively employed when its
actions are endorsed as consistent with international norms and broadly shared
objectives and when U.S. forces act in coalition and in conjunction with
nations and institutions that undertake political, social, and economic
efforts. Securing international support, while not determining, has become
increasingly important for advancing U.S. security interests.
How the United States exercises leadership in its current position
of military, political, and economic strength will affect more than military
successes; it will significantly determine the future role of the United States
in the world. It is in this broader context that this chapter considers the
U.S. position toward the ICC.
It is true-perhaps we can say it only to other Americans-that the
United States has accepted unparalleled responsibilities around the globe. And
while there may be elements of U.S. "indispensability" that ring true, it is
simply not useful to say it publicly and haughtily. In the eyes of many, that
is what the United States did in Rome. Foreign governments believed that as its
price for serving as the world's police force, the United States was demanding
an exemption from accountability.
The overwhelming vote against the U.S. proposal to allow states to
shelter their nationals form the ICC shows that most nations, including some of
the strongest allies of the United States, recoil at what they perceive as an
open display of U.S. exceptionalism. This perception is dangerous. Over the
long term, it undermines the capacity of the United States to lead. The ICC
unfortunately is not the only issue fueling this perception. But because it
goes to the heart of accountability international norms and because it is the
first new international security institution in decades, it is a particularly
resonant issue by which to measure U.S. attitude toward global leadership. This
places a heavy burden on opponents of the ICC to demonstrate why it is not in
U.S. interests to join the Court.
Military Concerns
The U.S. military has reason to be wary of an CC. The concept of
allowing a civilian court to evaluate what essentially may be professional
military judgments runs contrary to the core of the U.S. military system- The
idea that the laws Of war, so clearly and diligently ingrained in U.S. military
doctrine and training, might be reinterpreted by an outsider is worrisome. As
Robinson Everett explains in chapter 9, even the shared jurisdiction embodied
in status of Forces Agreements (SOFAS), which are now considered the key
prerequisite for ensuring Protection of American servicemembers deployed
abroad, once was viewed with Suspicion. At a more fundamental level, the
military rightly expects that its civilian leaders will be sufficiently clear
and committed in their direction of military force that the execution of Policy
will not be a contentious issue subjected to second-guessing of the ICC.
Americans should expect these concerns to surface in the context of
the ICC. They are all the more legitimate in the context of America's leading
military role. Active international engagement means that American citizens are
exposed on many fronts. Our forward-deployed soldiers (and diplomats) may be
engaged by enemy fire, taken hostage, or attacked by terrorists in the course
of their duties. U.S. leaders and citizens understand this to be an integral
part of the burden of responsibility; and while they take the associated risks
every day, they also strive to minimize those, risks.
Moreover, the United States will be the target of international
criticism for unilateral actions, such as U.S. attacks on Libya in reprisal for
the Berlin disco bombing or the bombing of the Al Shiffa pharmaceutical plant
in Sudan. Even when endorsed by the United Nations or supported by a large
majority of nation-states, U.S. actions can engender enemies and criticism. One
need only consider the charges levied against the United States for causing
civilian casualties in operations against Iraq. The nature of the attacks in
Kosovo also highlighted questions about the humanity of a strategy that
appeared to minimize military casualties at the cost of risking greater
civilian loss of life.
In the end, the mandate and the structure of the Court,
particularly its requisite deference to national judicial capabilities, coupled
with the training and the conduct of the U.S. armed forces adequately address
many of these legitimate concerns.
The U.S. military, as much as, if not more than, any other military
establish ment, trains its servicemembers in the law of war and has
integrated a serious program on international and human rights law in all of
its training and education programs. Concerns about the Court should be
mitigated by confidence in this commitment to the training and the caliber of
American soldiers, sailors, airmen, and marines.
U.S. Commanders are professionals who know how to do their jobs.
Commanding a modem military operation requires great and sustained attention to
legal issues. This is not just because it behooves members of the, military to
understand their rights under the Geneva Conventions and other applicable
norms-which are critically important. it is also because the reciprocal nature
of the laws of war requires that the U.S. military internalize the rules and
constraints when conducting its own operations. One need only recall the legal
basis the U.S. claims for the humane treatment and return of captured American
servicemembers, whether in Iraq or Kosovo, to understand why the military cares
deeply about international law.
In preparing American forces for the Bosnia operation in 1995, a
great deal of effort was devoted to avoiding inappropriate or inhumane action,
including potential violations of the laws of war. Many hours were spent
identifying "protected sites" so that the United States would not destroy them.
Lawyers were included in all relevant planning and decision making. During the
initial Bosnian intervention, day-to-day decisions often required moving the
artillerymen to the back benches and moving the lawyers up front. This is the
way of modern military operations. The United States places a high priority on
following the laws of war because it is important, right, and prudent. And the
United States will continue to do so regardless of whether an ICC with related
jurisdiction comes into being.
The U.S. government will never commit genocide. Furthermore, it
will never purposefully or systematically commit war crimes or crimes against
humanity. This doesn't mean that others will always concur that U.S. use of
force does not raise potential violations of international law, including those
that fall under ICC Convention jurisdiction. For example, a serious issue
revolves around Geneva provisions regarding disproportionate force and the war
crime of "[i]ntentionally launching an attack in the knowledge that such attack
will cause incidental loss of life or injury to civilians."4
The ICC's Statute specifies that the Court will have jurisdiction "in
particular" when such an attack is committed "as part of a plan or policy or as
part of a large-scale commission of such crimes."5 But the
Statute does not say that the Court will have jurisdiction "only" in such
cases. Given the difference of perspectives between the United States and many
other nations, there can be serious international debate about whether a
specific bombing campaign would constitute a "large-scale commission" of a
crime and whether it would be reasonable to believe that such bombing would
cause incidental civilian casualties.
Kosovo demonstrated that in the present urbanized world, the total
avoidance of collateral damage is impossible, even with the precision weapons
used today. So there may be ongoing questions about whether bombing, even when
undertaken with great effort to minimize harm to civilians, would be a
legitimate concern of an ICC. In addition, any military campaign will be
flawed. The United States and its allies will make mistakes, such as bombing
the Chinese Embassy in Belgrade. These are reasons why U.S. efforts to require
that the detailed elements of crimes be applied by judges at the outset-before
consideration of general international law -- are so important.
Nonetheless, the U.S. military justice system is best positioned to
evaluate criminality and negligence regarding the use of force. If it is
appropriate to investigate mistakes to determine who was responsible or if
particular actions merit investigation of criminal charges, the U.S. military
will do so. The United States was correct to insist on strong provisions to
ensure that ICC jurisdiction would be complementary to that of national justice
systems.
As Judge Robinson Everett argues, the ICC's complementarity
provisions provide a means for demanding that U.S. authorities-not the ICC-have
the opportunity to investigate and to prosecute alleged crimes by American
servicemembers against the "Law of Nations:' Everett notes that there is no
absolute protection against Americans ever being brought to trial before the
ICC. With regard to the American who might participate as a mercenary in a
foreign genocidal campaign, his fate might be best served by an ICC. Americans
abroad currently fall under the jurisdiction of foreign courts, unless they are
servicemembers deployed under a SOFA. And even in the case of a SOFA,
complications may arise regarding jurisdiction that is shared between the
United States and the host nation. So absolute protection from prosecution
overseas is, in reality, an unreasonable expectation, particularly in the
context of what already have been defined as international crimes that any
nation may prosecute.
Moreover, in order to actually investigate a case, the ICC would
have to demonstrate that the United States was unwilling to genuinely
investigate or prosecute. A matter of legitimate concern regarding violations
of international law will be investigated and prosecuted vigorously by U.S.
military authorities. The criminal embarrassments of Vietnam, and possibly of
Korea, are of another age. It is very difficult to imagine any reasonable
institution or people who would not conclude that the U.S. military is
committed to upholding international law.
Thus, the prospect of an American soldier actually being prosecuted
and sentenced by the ICC is reasonably remote. The more realistic apprehension
about the Court is that it will be used as a political forum for raising
questions about U.S. foreign policy. Concern about the ICC is at the strategic
level, and it is fundamentally political. The legal vulnerability of an
American soldier is not the chief threat.
The political concern has merit. One consequence of the
disproportionate might of the United States is that it is rarely subject to
direct military challenge by its enemies. Foes will search out asymmetrical
responses to U.S. strength. Care should be taken then regarding the creation of
alternate means (in this context, the ICC) that can be used by opponents to
disrupt operations of the United States, to imperil its ability to act, and to
undermine its accomplishments.
Certainly enemies of the United States, or an ICC Prosecutor, could
raise questions about U.S. military actions by threatening to hold military or
political leaders accountable for violations of international law. It is not
unreasonable to fear that U.S. actions, or even threats of actions (such as
hints of a U.S. attack to prevent terrorist action), could prompt a complaint
to the Court or result in the ICC announcing its intention to investigate. This
issue has arisen in the context of requests that the International Criminal
Tribunal for the Former Yugoslavia (ICTY) investigate the NATO bombing of
Kosovo. But as Bartrarn Brown's chapter (chapter 4) explains, many procedural
safeguards to prevent frivolous prosecution have been built into the Court's
jurisdiction and operation. Moreover, there are other forums and means to
challenge U.S. policy; the ICC will not be the only vehicle for so doing, and
it may well prove to be a less effective venue than a press conference.
Treating the ICC as though it will become the prime mechanism to challenge
American global leadership is to vest more power in the Court than it could,
ever have.
Impact on Decision Making
In terms of policy decisions, Clinton administration officials
already have warned that because an ICC could be used to challenge U.S. policy,
it could inhibit U.S. activism overseas. They argue that the ICC's existence
could make the United States reluctant to conduct military operations that are
not vital for American security. By this argument, the operations most at risk
would be those at the humanitarian or peacekeeping end of the spectrum of
military engagement (particularly given the current attitudes of many in
Congress who both oppose such operations and oppose the ICC). The initial
American intervention in Somalia bore no relationship to traditional security
interests; it aimed to save human lives. U.S. relief efforts in Rwanda after
the genocide were conducted for humanitarian reasons. These types of
deployments and even disaster assistance to non-Americans would be most easily
sacrificed for fear of the ICC.
But Kosovo demonstrates that such predictions of military
recalcitrance are likely overblown. The ICTY had jurisdiction over Kosovo, and
NATO intervened on a large scale. It is true that the ICTY is a creature of the
U.N. Security Council and that the United States was familiar with its
personnel and rulings. Nonetheless, no commentator appears willing to contend
that if an ICC had existed, the United States would have refrained from acting
against Slobodan Milosevic. The campaign was roundly criticized for many
reasons. North American academics submitted a complaint to the ICTY charging
NATO with inappropriately targeting civilian infrastructure, using inhumane
weaponry, and causing unnecessary civilian casualties. But the main source of
international governmental concern appeared to be the fact that NATO acted
without U.N. Security Council authorization. Ironically, perhaps, the ICTY's
indictment of Milosevic may have done more to legitimize the bombing of Serb
targets than any other event surrounding NATO engagement.
The Court's overall impact on the United States in deciding whether
to deploy forces will be marginal. It is doubtful that an ICC would ever
constitute the sole reason not to undertake a military mission. It will be
disregarded when circumstances require and used as a rationale for inaction
when other interests dominate. If there were a strong consensus about the
importance of U.S. military action among American policymakers, the impact of
the ICC would not be significant.
Operational Impact
The ICC could have impact at the operational level, ranging from
the virtually imperceptible to the extremely negative, depending on the Court's
actions. For example, the United States certainly will revise (or finish
revising) all of its SOFAs to ensure that they include protections from ICC
jurisdiction, providing greater assurance for servicemembers and reinforcing
the principle of complementarity. In the future, before conducting a training
exercise, overflying territory, or mounting a territorial defense, the military
will routinely determine whether the host nation, its neighbors, or an
anticipated adversary is a "State Party" to the ICC. Thus, the ICC will become
another routine piece of the complex mosaic of standing legal protections and
associated deployment prerequisites.
The ICC could have more potentially significant effects if it were to routinely
pursue allegations against U.S. policies. Such a posture is unlikely, given the
degree to which a new ICC likely will be guided by U.S. allies and will be
eager to establish its credibility. Moreover, ICC actions would not proceed as
long as the United States were undertaking its own investigation. But the very
act of launching an investigation, however short-lived, could give credence to
allegations of wrongful acts by the United States. Such actions could have two
effects on U.S. military operations.
First, U.S. concern about avoiding such charges could lead to
unwise operational constraints. For example, if the military were directed to
adopt as operational policy stricter interpretations of "proportionality," this
could reduce the speed, mass, and dominance that have characterized U.S.
military operations in the past decade (and lower casualties). Concerns about
incidental loss of life could result in even more conservative targeting. Some
would call this a positive development, but repeated piecemeal efforts increase
the risks to both parties and are usually more harmful in the long run.
Returning to the recent Kosovo experience, the slow and limited buildup of
NATO's air campaign can explain, in part, the length of the war and the
resulting "incidental loss of life" -- an unintended consequence of
"proportionality." In fact, the United States already subjects its military
operations to a high degree of sensitivity to target selection and other
related legal concerns.
Second, a more likely effect of ICC interference in U.S. policy
would be to increase the frequency and visibility of internal U.S. military
investigations. The Clinton administration has implied that it would not
investigate the legality of military operations that it regards as valid
official actions to enforce international law.6 If the
United States ultimately felt compelled to better insulate itself from ICC
jurisdiction by investigating ICC concerns, the Department of Defense (DOD)
could find itself launching investigations on the flimsiest of charges.
Investigations might be considered a relatively inexpensive insurance policy,
but they would absorb time and money. If taken to extremes, internal
investigations would undermine morale and appear to constitute second-guessing
of military decision making. They could ruin individual careers and ultimately
decrease public confidence in the military.
Of course, these potential negative effects hinge on an assumption
that the ICC will overreach and pursue matters that are not within its intended
purpose of holding the worst international criminals to account.
Leadership in Partnership
The United States does not conduct coalition operations because it
could not achieve its military objectives without the assistance of other
nations. Put bluntly, the United States can accomplish virtually any strictly
military task it is ordered to carry out. Rather, the United States works in
partnership with others to accomplish a variety of objectives-and political
objectives are at the forefront. Leading coalitions can be trying,
time-consuming, and resource intensive. The associated costs and uncertainties
cannot be predicted. But leadership of the United States, and its ability to
sustain its credibility and effectiveness as a leader in the twenty-first
century, hinges in no small part on its willingness to lead with and through
other nations.
A footnote from my own experience: In Bosnia the U.S. division
comprised forces from twelve nations. Leading this coalition force required an
enormous amount of time on a helicopter to meet with national commanders to
consult, listen, propose, discuss, redraft, persuade, and compromise. It was a
lot of work, and the end result wasn't always the initial plan. But the
strength born of unity almost always allowed the U.S. division to accomplish
objectives that otherwise would not have been possible. Turkish and Russian
troops side by side searching a Bosnian village made it impossible for either
Muslims or Serbs to cry foul. Translating a political consensus into military
cohesion at the point of an operation allows one to accomplish a great deal.
This is not the essay in which to fully explore the advantages of
collective action, but suffice it to say here that U.S. national security does
not consist only of winning specific military campaigns. This is why the United
States has worked for decades to expand political and economic freedoms and to
strengthen laws and institutions that promote national security through
nonmilitary means. This effort has involved compromises and uncertainties, but
it serves larger security objectives.
There is no doubt that genocide, crimes against humanity, and
violations of the laws of war deserve punishment. The International Criminal
Court, as a vehicle for holding accountable the perpetrators of the most
horrific internationally recognized crimes, offers another way to strengthen
the international rules that the United States has worked to uphold. By
allowing the international community to guarantee individual responsibility,
the Court may help avert wider conflicts. By promoting justice, it may help end
a cycle of violence in a particular historical conflict. To the extent that the
Court helps accomplish any of these objectives, it may reduce demands for U.S.
military action.7 Many proponents overstate the ICC's
potential positive effects, much as many opponents inflate the risks. But the
Court certainly has the potential to contribute to the kind of international
environment the United States has long sought.
In addition, the ICC is the first security-related international
institution since the United Nations. U.S. absence from the Court would be a
significant and supremely isolating act. It will underscore U.S. ambivalence
about joining in collective efforts and institutions to enhance security, an
attitude that, however reasonably presented, weakens the claim of the United
States to international leadership. Other nations increasingly question the
intentions of a leading power that appears willing to lead exclusively on its
own terms. The United States loses leverage and credibility by fueling
impressions that its cooperation in international politics requires an
exemption from the rules.
Finally, the Rome Statute will, in the eyes of the international
community, apply to Americans-including U.S. military personnel -- regardless
of whether the United States signs or ratifies the Treaty. U.S. assertions of
exemption from the Court's reach are, as Michael Scharf writes in chapter 13
of this volume, unlikely to convince most other nations. Thus, the potential
that the Court will be a forum to which politically motivated charges are
brought remains alive regardless of the U.S. view on the Court's jurisdiction.
This means that, for all practical purposes, the Court's possible negative
impact will be just as great if the United States refuses to join.
Conclusion
From a purely pragmatic standpoint, the United States can do more
to advance national interests (and the interests of U.S. servicemembers) by
signing the Treaty than it could by continuing to -oppose the ICC. To no small
degree, the Court's efficacy and impact will hinge on the appointment of
capable, fair, and apolitical officials. The United States has everything to
gain from helping to choose those individuals. The United States will be in a
better position to ensure an appropriate U.N. Security Council role regarding
the definition of aggression if ever the Assembly of States Parties were to
entertain discussions on that contentious issue. Ignoring the Court
accomplishes little. It seems, on balance, prudent to sign the Treaty.
The United States has lost much of the moral high ground in the
effort to shape the ICC. While much time can be spent lamenting U.S. actions
and rhetoric before, during, and after the Rome Conference, the future offers
the only possibility for change. The sources of military concern are
understandable, but they hinge on a need to believe the absolute worst of an
institution and a process instead of on a commitment to ensure that it works as
intended. Moreover, by trumpeting its uniqueness and appearing to demand
special treatment, the United States corrodes its own power and authority.
Notes
1. Remarks by the president to the fifty-second session of the
United Nations General Assembly, September 22, 1997.
2. Address to both houses of Parliament, Ottawa, Canada, April 29,
1999.
3. Desert Storm was certainly a military success, but the ongoing
confrontation with Saddarn Hussein's regime shows no likelihood of near-terin
resolution. The United States left Somalia without achieving even its revised
goals, and the country remains in chaos. U.S. intervention forces have left
Haiti, but the intervention's ultimate success remains debatable.
4. Statute, art. 8, 2 (b) (iv).
5. Statute, art. 8, 1.
6. See Ambassador David Scheffer's chapter (chap. 6) in this
volume.
7. It is also true that the ICC may create pressure for U.S.
engagement by down international indictments. The United States will have to
evaluate carefully feasibility or the wisdom of seeking to apprehend alleged
criminals (as has been the Bosnia).
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