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D.R. Bartam: The International Criminal Court and the United States
Written by Darwin R. Bartram, Attorney, Baker and Hostetler, LLP
Tuesday, June 18, 2002
Presented at an International Symposium on The United States and the United Nations: Governance and the Challenge of Contemporary Crises, June 18-19, 2002
There is an old story that if you put a frog in a pot of cool water and slowly heat it, the frog will be cooked without ever realizing its peril and jumping out. President Bush did the right thing by taking the United States out of the cauldron before it was too late. Nonetheless, despite its strong and enduring opposition to the court, the United States can have an auxiliary role with the court, provided the court does not overstep its role in the world arena.
International criminal justice is a relatively new concept. Before the creation of the ICC (International Criminal Court), there had been only two criminal courts that could be accurately termed “international” —the ad hoc UN tribunals for Yugoslavia and Rwanda. (These are distinct from the tribunals established following World War II, which were an exercise of German sovereignty by the victorious Allied forces.) These UN tribunals were created by the UN Security Council and are responsible to no national authority. They were established to address a situation where normal, national judicial functions were virtually absent, and, although they have punished some individuals deserving punishment, whether they have succeeded as institutions is not apparent. In the early 1990s, when these courts were created, they were advertised as mechanisms by which warring parties could, once and for all, be reconciled—so that future generations would not have to settle old scores and collective guilt would be avoided by attributing crimes to individuals instead of factions. In this, the courts have—so far—failed.
The creation of a permanent ICC presents real and immediate challenges for U.S. policymakers. Some would argue that the answer for the United States is to embrace the international justice system in general (and the ICC in particular) so that it can influence that court’s actions. This is emphatically not the answer. The ICC is a deeply flawed institution, in both its conception and realization.
To begin with, the Rome Treaty seeks to wed dramatically different legal traditions and attitudes toward justice and the rule of law. Of the 68 states that had ratified the Rome Treaty as of mid-June, 2002 [editor’s note: 106 as of 2008], according to the most recent State Department Human Rights Reports, 19 have been implicated in extrajudicial killings, or torture, or both. This includes states such as Cambodia, Congo, Nigeria, Sierra Leone, and Tajikistan. If the test is extended beyond the worst excesses, merely to include such problems as unacceptably prolonged pretrial detention, states such as France and Spain must be added to the list. This court does not represent American values. (Leaving aside the absence of protections from double jeopardy, the right to confront witnesses against you, and the right to a jury trial.) In fact, the percentage of countries with “human rights problems” is only likely to increase, given that most of the countries with developed legal systems that have indicated an interest in joining the court have already done so.
In addition, the ICC would lack any semblance of democratic legitimacy. If the United States ratified the Rome Statute, it would have but a single vote in the Assembly—the exact same representation enjoyed by Liechtenstein, Luxembourg, the Republic of San Marino, Andorra, and Nauru. When the United States joined the United Nations in 1945, only the creation of an absolute “veto” for it in the Security Council, where all of the UN’s “coercive” power was vested, was deemed sufficient to protect American interests.
Although it would exercise some of the most coercive powers of government—the powers to investigate, prosecute, and criminally punish individuals—the ICC’s prosecutors and judges would be unelected and unaccountable for their actions. Although those individuals can be removed for personal misconduct, neither the states that have ratified the Rome Treaty nor any other authority can reverse one of the ICC’s judgments.
The court is subject to misuse. This is troubling in two respects. First, allegations of “war crimes” have become a routine tactic in modern conflict, serving as an inexpensive means of seizing the moral high ground. The most recent example, of course, is the Palestinian authority’s claims of a “massacre” at the Jenin camp. These unsubstantiated assertions sent the international community, and particularly the international humanitarian NGOs, into a fit of anti-Israeli rhetoric, with Amnesty International announcing that “there is strong evidence indicating that grave breaches of international humanitarian law and violations of human rights in Jenin camp were committed by the Israel Defense Force.” Of course, there was no massacre in Jenin (Palestinian casualties evidently numbered fifty-six, of which two-thirds were combatant casualties), and, if anything, Israel suffered unacceptably high losses as a result of its overly cautious assault on the place.
Second, the crimes subject to ICC jurisdiction, including “genocide,” “war crimes,” “crimes against humanity,” and the yet to be defined crime of “aggression,” are very elastic. Although efforts have been made to define these offenses in the Rome Statute and the ICC’s rules, the ICC will have very broad latitude in interpreting and applying these definitions. What is and is not a violation of international criminal norms is almost always a matter of opinion—even in areas where there is supposed to be general agreement on the norms to be applied.
For example, the prohibition on deliberately targeting civilians is one of the most basic, straightforward “laws of war,” with roots as far back as the sixteenth century. In the current Middle East conflict, however, claims have been made that the use of “suicide” attacks on civilian targets is a legitimate means of resisting “occupation,” and this view has been supported—either directly or implicitly—by a number of states. One Saudi official noted that these individuals are not terrorists, but youths offering “their souls for the sake of freedom.” Similarly, many states have refused to reject or condemn these tactics, and a draft resolution was recently offered in the UN’s Human Rights Commission by more than a dozen Arab/Islamic countries (including “moderates” like Jordan, Morocco, and Egypt), who were joined by China, Cuba, and Vietnam in approving the use of “all available means,” without qualification, to achieve creation of a Palestinian state.
This lack of agreement relates to one of the most fundamental rules; when the details of a particular engagement are analyzed, for example, whether a particular military action resulted in a disproportionate number of unintentional civilian casualties for instance, the situation becomes utterly arbitrary. The Yugoslav tribunal’s prosecutor summed it up nicely, after investigating NATO’s conduct in the 1999 air campaign against Serbia:
The answers to these questions are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision-maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases.
So, whether a crime has been committed depends as much on who is making the decision as who the defendant is. Anyone who watched the international community, the UN in particular, deal with Israel over the purported massacre in Jenin has gotten a preview of the potential shortcomings of the ICC. Israel’s chief complaint about the team of investigators assembled by the UN to investigate Jenin was that they were, by and large, politicians and civilians—a former president of Finland, a former United Nations high commissioner for refugees, and a former head of the International Committee of the Red Cross—rather than military officials. When a tribunal is trying to evaluate whether the so-called collateral civilian and property damage is disproportionate to legitimate military objectives (art. 8(2)(a)(iv)), it seems self-evident that some military background would be indispensable. Nonetheless, while the Rome Treaty requires judges and prosecutors to have experience with criminal law and procedure, there is absolutely no requirement for any familiarity with military law.
Now, many ICC supporters often suggest that the principle of “complementarity” (found in Article 17 of the statute), under which the court must defer to national judicial processes, will avoid all of this and protect US forces and officials from unjustified charges. However, in every case it will be up to the ICC to determine whether, in its view, the national authorities were “unwilling or unable” to fully and fairly investigate an allegation, and it will be the absolute and final judge of its own jurisdiction. In fact, one feature of the American system of government will give the ICC the ability to overlook complementarity in every case. The President of the United States is simultaneously the commander in chief and the chief law enforcement officer. Thus, there is an inherent conflict of interest in his decision not to pursue a particular case, given his potential command responsibility.
Moreover, the likely significance of complementarity in actual practice can be judged by the hostile attitudes to national prosecutions evinced by ICC supporters. The Council of Europe recently claimed, for example, that “in the future, the worst war crimes and crimes against humanity must be tried in an international court. Leaving their prosecution to domestic tribunals…could amount to asking the perpetrators to put themselves on trial.” Thus, many have discarded complementarity even before the ICC’s doors have opened. The United States should find no comfort in the myth of complementarity.
There is little doubt that the creation of the ICC has introduced a new and dangerous element in the international arena. That court is not likely to deter international rogues like Saddam Hussein any more than the Yugoslav tribunal deterred Slobodan Milosevic in Kosovo. It will, however, serve to inhibit the democratically elected leaders of law-abiding states, making decisive action even more risky. The net result would be to weaken deterrence and make aggression more likely. Ironically, ICC supporters often characterize opposition to the court as “isolationist.” US accession to the Rome Treaty would make isolationism the only foreign policy American leaders could pursue without a real and immediate fear of prosecution.
Fortunately, the International Court of Justice recently issued a decision that should give the United States some comfort that it will not be affected by the creation of the ICC. The case, Congo v. Belgium, involved an attempt by Belgium, using principles of universal jurisdiction, to prosecute the Congolese foreign minister based on statements he made allegedly inciting “racial hatred.” Congo sued, and the ICJ reaffirmed the traditional rule of international law that state officials are immune from prosecution or other forms of legal process in the courts of foreign states unless their immunity has been waived by their own governments. The ICJ’s opinion, of course, is not binding on states other than Belgium and Congo. However, it represents a significant and laudable effort to reassert the traditional rules of international law in this area.
Having come down against the ICC, the question remains, should the US position regarding the court be one of cooperation, tolerance, or opposition? A recent article in the Washington Post noted that some Dutch lawmakers are scratching their heads about the pending American Service members Protection Act. This legislation would authorize America to use “all means necessary” to prevent the trial of Americans before the ICC, so the bill has been cutely nicknamed the “Hague Invasion Act of 2002.” I would suggest that the Netherlands really has nothing to worry about if the United States is willing to give a rogue regime like the Taliban several chances to cough up Osama bin Laden before initiating the invasion. We would no doubt give the Netherlands considerably more opportunity to return our people to us.
In all seriousness, though, over the next several years, we should watch with cautious optimism that the court will stay within its bounds. That is, it should function merely as the result of a multilateral treaty that affects only the ratifying states. If this remains the case, then limited support from the US would be acceptable. For example, we could share intelligence, provided it does not compromise national security. At the same time, if the court attempts to assert a global reach, affecting the nationals of non-signatories, then the United States should do everything in its power to oppose the court. War is inherently a violent affair, and the discretion whether to prosecute any particular case in which Americans are involved should be kept firmly in the hands of our institutions, to be made by individuals who are accountable to us for their actions. Permitting the ICC or any other such institution to determine whether the actions of US officials have violated international criminal norms will not make the world safer. It would in fact make the world a far more dangerous place by deterring the use of military force in instances where such action may be necessary to vindicate US national interests and international peace and stability.