They threw a party at the United Nations recently, but the United States did not attend. The hoopla, celebrated by sixty-six nations and hundreds of nongovernmental organizations, marked the birth of the new International Criminal Court (ICC), but the United States, by refusing to ratify the treaty creating the court, sent its regrets. The establishment of a major world court without U.S. participation opens a new and troublesome chapter in international law and diplomacy.
Only a few years ago, the United States would have been expected to support the new court. Most of America's traditional allies, including Great Britain, Canada, and its European friends, are key participants. The United States has been a major supporter of the temporary international criminal tribunals for the former Yugoslavia and Rwanda (precursors of the permanent ICC) and was one of the nations helping to shape the new court.
But a funny thing happened on the way to the International Criminal Court. A group of "like-minded nations" became highly committed to a court with far more sweeping powers than ever before seen or envisioned, and, in the end, they hijacked the process, rushing past U.S. concerns. The Clinton administration was ambivalent, but the Bush administration has been steadfastly opposed, and rightly so.
There is plenty not to like about the ICC. Although the court's primary agenda is war crimes, crimes against humanity, and genocide, it also has jurisdiction over a new, undefined crime of "aggression." With troops stationed around the world, the U.S. military has reason to be concerned. Instead of cases being referred to the court by the U.N. Security Council, an independent prosecutor will make those highly political decisions. Amazingly, the ICC purports to have jurisdiction over citizens of countries that do not participate in the court, an unprecedented expansion of international law.
Why should Americans care? For one thing, it is highly likely that Americans will be investigated or charged as criminal defendants. Government officials, military officers, and soldiers—even corporate executives—are all possible targets. Another concern is that defendants cannot rely on the right to a jury trial, protection against unreasonable searches, and many other protections afforded by the U.S. Constitution. With considerable anti-American sentiment attending the creation of the court, the ICC could easily become a forum for trying U.S. military and national policy as criminal matters.
In a larger sense, Americans should also be concerned that sixty-six nations, out of the nearly two hundred in the world, have railroaded the formation of this court. Although its humanitarian purposes may be noble, a criminal court of universal jurisdiction created by one-third of the nations of the world, representing one-sixth of its population, constitutes a major power play. The party at the United Nations was not just about a court; it was also a celebration of small and medium-sized nations and hundreds of nonprofit organizations attempting to level the playing field with the United States and other world powers.