The US 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.
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.
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.
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.
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.
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.
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.
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.
- The ICC Would have jurisdiction over individuals, not states. The International Court of Justice has jurisdiction over states.
- Robert H. Jackson, "Opening Speech for the Prosecution at Nuremburg," (21 November, 1945).
- Trial of Major War Criminals Before the International Military Tribunal, Official Documents, (Nuremburg, 1947).
- 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.
- The use of nuclear, chemical, or biological weapons was specifically excluded from the jurisdiction of the ICC.
- The third route to the Court, a UN Security Council referral, presumably would be blocked by the U.S.
- Mike Blanchfield, "Axworthy Counsels Albright: World Criminal Court Not Interested in U.S. Soldiers," The Gazette (Montreal) June 17, 2000.
- 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).
- 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.
- Barbara Crossette, "U.N. War Crimes Prosecutor Declines to Investigate NATO," New York Times, June 3, 2000.
- 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.
- 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."
- Examples include the right of State Parties to opt out initially of ICC jurisdiction over certain crimes.
*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 Associate 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.