Fall 2000 Bulletin

The International Criminal Court

James Carroll

In September the Academy's Committee on International Security Studies issued a major report, The United States and the International Criminal Court: National Security and International Law, edited by Sarah B. Sewall (John F. Kennedy School of Government, Harvard University) and Carl Kaysen (Massachusetts Institute of Technology). The study, published by Rowman & Littlefield, places American views toward international justice and international institutions in historical perspective, helping to explain current administration and congressional attitudes about the proposed court and its relation to US security interests. In the following editorial, James Carroll, Academy Fellow and columnist for The Boston Globe (which originally published the piece on September 12, 2000), states the case for American support of the International Criminal Court.

US Should Back Tribunal

By James Carroll

It is mere sentimentality to be against war without at the same time supporting the erection of new international structures that make for peace. One of the most important of those is the International Criminal Court, an institution that would, by holding perpetrators responsible for crimes against humanity, break the ancient cycle of atrocity and revenge that has turned the wheel of so much violence.

Temporary tribunals have been established to deal with the genocide in Rwanda and the outrages in former Yugoslavia, but the ICC would be permanent, and potential war criminals everywhere would know it.

At Kofi Annan's urging, the treaty establishing the ICC was on the agenda of the summit of world leaders at the UN last week, although the media took little notice when the Marshall Islands became the 99th nation to sign.

The United States was one of only six nations (with Iraq and China) out of 120 to oppose the initial call for such a treaty in 1998, but now that it is on the table, Washington has yet to formally take a position one way or the other.

As is true of so much on the international scene, the American disposition toward this treaty is locked in the irons of partisan politics, an ambivalent administration, and popular indifference. In an attempt to help break that stasis, the American Academy of Arts and Sciences has just released a report, The United States and the International Criminal Court: The Choices Ahead, authored by Sarah Sewall and Carl Kaysen, two veterans of the national security debate.

They take up the arguments for and against the treaty, in the context of pending legislation that would outlaw American participation -- an analysis that makes clear why this question should be at the center of the national conversation.

American opposition to the ICC might seem strange not only because this nation firmly pressed for the establishment of the Rwanda and Yugoslavia tribunals, but because the entire enterprise of holding war criminals individually responsible for their actions goes back to the Nuremberg and Tokyo tribunals after World War II, which were centrally American. But as Sewall and Kaysen point out, those could be taken as instances of "victor's justice," which does nothing to alter the cycle of killing and revenge.

An authentic alternative to war requires, in their words, "a free standing, independent court to insure that international law would be applied equally, without political favoritism." But that means that the United States, too, would be subject to judgment, and there's the rub. Sewall and Kaysen observe that to the other nations working to establish this court, "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 rule it establishes for others."

Does our traditional sense of ourselves as an exceptional nation, or our contemporary self-image as the last superpower, mean that we can impose on others standards and strictures that we reject for ourselves? Congressional -- mainly Republican -- opponents of the ICC are apparently content to answer this damning question yes. Jesse Helms has proposed legislation "to isolate the ICC and then to kill it,"as a Helms spokesman said.

The bill is called "the American Serviceman Protection Act of 2000,"but what is really being protected is a 19th-century notion of national sovereignty. Ironically, from America's own post-World War II internationalism to the American economy's post-Cold War globalism, no one has done more to undermine such "out-moded" nationalism, in Sewall and Kaysen's word, than this nation.

Indeed, the International Criminal Court exactly embodies the best of what the American idea has come to mean. It will be tragic beyond words if this new structure of peace is added to the heap (with the Land Mine Treaty, the Comprehensive Test Ban Treaty, perhaps even the ABM Treaty) of what a dangerously self-obsessed America rejects.

It need not be so, and the initiative need not be left to Helms. Among the "choices ahead" Sewall and Kaysen include this one:

"The president could sign the Statute [the ICC Treaty] to signal US 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 the opportunity to prove itself."

But whatever the president chooses to do over the coming months, we have a vice president who is "running as his own man." Al Gore could take the lead in shaping this debate, lifting up the International Criminal Court as an issue urgently requiring the electorate's thoughtful attention.

Indeed, moving beyond sentimentalism, he could help Americans understand the court as an exact instance of the real achievement of the "greatest generation." What else did those heroes fight for, in sum, than to replace war with justice?

© 2000 by James Carroll