Why We Said No

Tuesday, July 30, 2002

When 66 nations and hundreds of nongovernmental organizations celebrated the creation of the new International Criminal Court at the United Nations this spring, the chair of the United States delegation was empty. Just to be sure the message was clear, the State Department subsequently delivered a letter to the U.N. stating unequivocally that the United States did not intend to participate in the court or be bound in any way by it. What many experts call the most important international institution since the United Nations now moves ahead without the most powerful nation in the world. The treaty establishing the court became effective July 1, 2002, and the new court is expected to be up and running in the Netherlands within a year. It is an important moment, ripe with implications.

The major supporters of the court—Canada, members of the European Union, and many nonprofits and foundations—have been quick to criticize the U.S. position. One group said it “signals to the world that America is turning its back on decades of U.S. leadership in prosecuting war criminals.” Refusal to participate in the court has been described by some as further evidence of increasing U.S. isolation in the world.

The truth is that the proponents of the court intentionally created an institution that the United States could not support. The United States, which has backed every international criminal tribunal, from Nuremberg and Tokyo following World War II to Rwanda and the former Yugoslavia today, was actively involved in helping develop the permanent court. The United States worked closely with the International Law Commission and others to follow customary international legal principles in creating a court of limited and defined jurisdiction.

But a funny thing happened on the way to the International Criminal Court. A small group of highly committed “like-minded nations,” aided by foundations and nonprofit organizations, developed a concept for a court of much wider jurisdiction and greater powers than ever before conceived. These groups, which do not traditionally lead the development of international law, hijacked the process and moved it onto a fast track. The United States, and other countries, were then presented with a take-it-or-leave-it plan for a sweeping new court. The Clinton administration was ambivalent about the court, but the Bush administration has been opposed and rightly so. Both the scope of the court’s powers and the process by which it was created present major challenges to the United States.

Despite some noble intentions, 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, as yet 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 likely that Americans will be investigated or charged as criminal defendants. Government officials, military officers and soldiers, even corporate executives, are all possible targets. These concerns are not, as some proponents of the court suggest, merely hypothetical. For years, efforts have been under way to bring former secretary of state and national security adviser Henry Kissinger before some international or foreign court to answer charges arising out of the conduct of the Cold War. And Slobodan Milosevic did not hesitate to charge NATO forces with war crimes in his trial. Although these older cases cannot be brought retroactively before the ICC, they illustrate future possibilities.

The ICC will have a significant and ill-considered impact on military policy and practice. Even before the terrorist attacks of September 11, U.S. military activity had increased by 300 percent over Cold War levels. Ironically many of today’s military actions are aimed at stopping or preventing the very human rights abuses the ICC is supposed to deter. With the prospect of military leaders, or even individual soldiers, being brought before a criminal court for their actions, real changes in American willingness to use force, and the manner by which force is deployed, are likely. As a result, the International Criminal Court will doubtless weaken what has been the single most important weapon against human rights violations to date, namely, the U.S. military.

Yet another valid American concern is that individuals brought before the court will not receive the sort of constitutional and procedural protections provided by the U.S. Constitution. For example, there is no right to a jury trial before the ICC, with three-judge international panels hearing all cases. Protections against unreasonable searches and seizures of evidence, the right against self-incrimination, and the ability to confront one’s accuser are all either absent or weaker in the ICC statute than under U.S. law. Indeed, some take the view that the United States could not legally agree to such a treaty, which, in effect, delegates the prosecution of Americans to a court that does not provide full U.S. constitutional protections.

The process by which this court has been created should itself give Americans great pause. Whereas international law generally develops slowly and by wide global consensus, this court was rushed into being by a limited but highly committed group of small and medium-sized European nations, with active participation by several human rights associations and nonprofit foundations. In their haste and single-issue passion for protecting human rights, they have created a court of law that rushes past valid legal concerns and that pushes over decades of international legal precedent.

The new course stretches the definition of existing crimes, creates new ones without definition, and makes it relatively easy for a small percentage of the world’s population to establish new categories of international crimes by a vote of the court’s Assembly of States Parties. Whereas international treaties traditionally allow nations to make reservations to specific provisions, this one was presented as a take-it-or-leave-it proposition. Whereas the United Nations Security Council, with its various political checks and balances, has historically referred international criminal matters to courts, those creating the ICC pressed for an independent prosecutor instead, undermining the U.N. Charter. Perhaps the most stunning step in the process was asserting authority over citizens of states that do not ratify the treaty, contravening the Vienna Convention on the Law of Treaties.

When you look behind the creation of this court, you find that it is not truly “international” at all. For example, those creating the court set the bar very low, requiring that only 60 states, out of approximately 190 nations in the world, ratify the treaty. The geographic representation of the 66 nations that had ratified as of this spring shows strong support in Europe and Africa but very little in Asia, the Middle East, or Latin America. A number of important strategic world powers—the United States, China, India, Japan, Russia, for example—are not participating, while the list of supporters is padded with small countries that normally play little part in international affairs. Indeed, the court may, in the end, be created by only one-third of the nations of the world representing as little as one-sixth of the world’s population.

The United States is thus left in an awkward and difficult position. Although it believes in the rule of law and in protecting human rights, it has been presented with a flawed statute for a world court that asserts unnecessarily broad jurisdiction. And all of this has been done, not by normal means of customary international law and consensus, but by a power play of small and medium-sized nations, with the support of single-minded nongovernmental organizations.

In one sense, the ICC is an attempt to level the international playing field, supplanting economic, military, and political power and institutions with a one-nation, one-vote development of new norms and institutions of international law.

Clearly the United States was right to “just say no” to the International Criminal Court. Flush with their success, however, these “liked-minded nations,” and their friends at the well-funded foundations and associations, doubtless have other agenda items in mind. It may not be enough for the United States to vote no and leave its seat at the bargaining table empty. If the International Criminal Court becomes half as important as its proponents believe, it will be difficult to ignore.