Will the new International Criminal Court mean a return to harsh and politically motivated victors’ justice? The United States has disassociated itself from the creature it helped create, but this court is one animal that will not go away.
After months of interviews and investigations, Captain Collins and Commander Jones had been cleared of wrongdoing by the informal panel and were enjoying a celebratory dinner. Their carrier battle group had deployed three months earlier-neither officer suspected that anything now would alter their plans to rejoin their shipmates.
Midway through the main course, four men, two in unidentified uniforms, pushed past the frustrated maître d' and approached their table.
"Are you Captain Collins, commander of Air Wing Nine on the aircraft carrier Ronald Reagan?" asked the obvious leader. Captain Collins, concerned, nodded in agreement.
"You and Commander Jones have been indicted by the International Criminal Court for crimes against humanity, aggression, and targeting civilians. It is my duty to place you under arrest and escort you to The Hague for trial."
The naval officers looked at each other in stunned silence. Commander Jones thought of the informal investigation that had just ended. Yes, civilians had been killed. Yes, their FIA-ISE strike-- fighters wreaked more havoc than anticipated. Yes, there was collateral damage. But, he reasoned, they were doing their jobs as ordered, had used the best intelligence available, and everyone knew targeting is much tougher when someone is shooting at you.
"But we were cleared by the Navy. You have no jurisdiction here—over me—for what happened. We're U.S. citizens!"
"Wrong, sir. Under the Rome Statute of the International Criminal Court, I have the right and obligation to investigate this case because the United States clearly was unable to do so effectively. Both of you please come with me."
In this a farfetched scenario? Perhaps. Is it an impossible scenario? No longer.
In July 2002, amidst much fanfare and hand wringing, the Rome Statute of the International Criminal Court (ICC) became effective as an instrument of international law. The United States, however, is not a party to the treaty and is unlikely to become one in the foreseeable future. Over U.S. objections, the ICC is widely supported by allies, was advocated by the Clinton administration, and has come into being only after years of legal and political controversy.
Interestingly, the United States is one of the founders of the ICC despite no longer being a signatory. In the wake of war crime trials for the various conflicts in the former Yugoslavia and Rwanda, the Clinton administration supported a series of conferences with the objective of creating a standing supranational criminal court to deter potential war criminals and to be able to punish offenders quickly. The movement to create the ICC gained momentum throughout the late 1990s and President Bill Clinton signed the treaty on the last day of December 2000—in the last moments of his administration.
In the final analysis, however, even so staunch a supporter as President Clinton had reservations. It was clear from the timing and the prevailing mood in Congress that the President had no intention of submitting the treaty to the Senate for ratification. We find ourselves at a unique crossroads: in an era of increasing globalization and decreasing commitment to national sovereignty, the United States is not a party to a potentially significant and intrusive international treaty that is supported by even its closest allies.
Standing international courts are a relatively new idea. Until the ratification of the charter of the League of Nations early last century, there was no body to hear cases between sovereign states except on an ad hoc basis when nations agreed to binding arbitration. The International Court of Justice (ICJ), created with the signing of the U.N. charter, is not analogous to the ICC. The ICJ does not hear criminal cases and only states can petition the court; individuals have no standing in its proceedings. In addition, the states involved must agree to the jurisdiction of the court before the case is heard. Some nations have agreed to submit universally to the jurisdiction of the ICJ, while others have chosen to submit on a case-by-case basis. The ICJ has worked effectively for more than 50 years because it has been, for the most part, apolitical and operated carefully within the scope of its charter.
The nearest cousin to the ICC is the international war crime tribunal. For a variety of reasons, the history of these kinds of trials is relatively brief. Traditionally, the punishment for violating international norms—particularly on the battlefield—was to find oneself politically or economically isolated, subject to retribution in kind, or on the receiving end of international scorn. The most prominent war crime tribunals—those in Nuremberg, Tokyo, and Manila after World War II—are not analogous to the ICC either and offer little to illuminate the way ahead.
In 1945, under the auspices of the United States, Soviet Union, France, and United Kingdom, about 200 accused Nazi war criminals were charged. A dozen were sentenced to death, 38 acquitted, and the balance received jail terms of varying lengths. The Nuremberg prosecutions ended when the realities of Cold War superpower politics made continued punishment of Germans in no one's self-interest. The Allies essentially ran out of political gas before they ran out of former Nazis to indict. Similar tribunals in the Far East, administered by the U.S. military under General Douglas MacArthur, were conducted less frequently and eventually became the subject of controversy and Supreme Court review.
In each of these examples, a defeated enemy surrendered unconditionally and had no functioning judiciary system. Occupying military forces served as de facto governments. The offenses committed during the war were horrific, and the perpetrators, evidence, and witnesses were readily available. Government functionaries who were left in Germany and Japan after the war agreed that proceedings were necessary and submitted to the jurisdiction of the tribunals.
Despite the political mandate for these trials, their creation was not a foregone conclusion. In January 1945, Secretary of State Henry Stimson told President Franklin Roosevelt, "The attempt to punish Nazi leaders ... for all of the atrocities committed by them also involves serious legal difficulties.... Nevertheless, the declared policy of the U.S. is that these crimes shall be punished, and the interests of post-war security ... as well as the demands of justice require that this be done."
In his dissent to the U.S. Supreme Court ruling on the trial of Japanese Army General Tomoyuki Yamashita, Justice Frank Murphy laid out similar concerns. "In the sober afterglow will come the realization of the boundless and dangerous implications of the procedure sanctioned today (the execution of a senior Japanese Army officer)," he wrote. "Even more significant will be the hatred and ill-will growing out of this unprecedented procedure.... To subject an enemy belligerent to an unfair trial, to charge him with an unrecognized crime, or to vent on him our retributive emotions only antagonizes the enemy nation and hinders the reconciliation necessary to a peaceful world.
Both Secretary Stimson and Justice Murphy realized, as have many in the intervening years, that victors' justice might involve very little justice at all and that criminal cases generally are best handled by the states in which the parties resided or in which the acts were committed.
Though considered on a number of occasions, there were there no war crime tribunals between the late 1940s and the ongoing cases against Serbians beginning in the 1990s. There certainly were war crimes to try. The killing fields of Cambodia, mass executions and deportations in Ukraine, the cruel treatment of U.S. prisoners of war in North Vietnam and North Korea, and many other atrocities violated international law and were either war crimes or crimes against humanity. But if the Soviets were compelled to answer for the deportation of Ukrainians, should the United States have been brought to task over the forced deportation of thousands of Japanese Americans during essentially the same period? Conflicting value systems made drafting coherent international criminal statutes and convening tribunals problematic. Cold War politics, international legal wrangling, and profound issues relating to national sovereignty made this far too deep a pond in which to wade.
When the collective moral outrage of the international community reached a fever pitch in the wake of Slobodan Milosevic's ethnic cleansing in the mid-1990s, interest in international tribunals resurfaced. President Clinton committed himself to bringing the Serbian President and his cohorts to justice in an international forum, but the Serbians were reluctant to submit to the jurisdiction of an international tribunal. In their view, it was a Serbian problem best handled by Serbians. They eventually acceded to intense pressure from the United States and NATO and agreed to the terms of the tribunal in what became the Dayton Accords.
The relative success of the Yugoslav and Rwandan tribunals reinvigorated the debate over a standing criminal court. Proponents reasoned the timing was right to push forward and succeeded in gaining U.N. sponsorship for the conferences that culminated in the Rome accords. The United States played an instrumental role in drafting the early proposals for the court but saw the process swirl out of control as time came for treaty submission. Though President Clinton signed the treaty, it never was submitted to the Senate for ratification. In May 2002, President George W. Bush formally "unsigned" the treaty and the United States began to seek bilateral agreements with the other signatories that guarantee Americans would not be extradited at the request of the ICC.
There were clear and serious risks incurred when the treaty was signed and additional risks incurred when it was unsigned. A few points to consider:
- There is no corpus of international criminal statutes, and no identifiable body exercises law-making authority. The ICC prosecutor easily could become a politicized independent counsel with an unfettered ability to both define the crime and select those to be accused. There is neither positive law nor historical precedents on which to rely, and there is no organization charged with enacting international criminal law to bound the problem.
- The ICC can exercise jurisdiction over citizens of states that have not signed or ratified the treaty. This is a significant break with recognized international legal norms and necessarily includes an abrogation of sovereignty. Though relatively unlikely, U.S. citizens abroad might be subject to the ICC even if the treaty never becomes law in the United States.
- There are few checks or balances. The U.N. Security Council exercises limited and poorly defined veto power over what the ICC chooses to deliberate. There is no means by which to appeal a decision. Neither the judges nor prosecutor can be removed except for the grossest misconduct. Under the ICC charter, national and international judicial systems are supposed to be "complementary," but there is no specific check on the ICC's reach. The ICC might prosecute a case even when previously addressed at the national level if the prosecutor believes it has not been handled "effectively."
- ICC powers are broad and ill defined. Though founded ostensibly to investigate only "the most serious crimes of concern to the international community (including genocide and crimes against humanity)," other crimes within ICC purview include "aggression" (an undefined term in the charter), "causing mental harm to members of a group," "willfully causing suffering," "committing outrages upon personal dignity," "impeding relief supplies," or, in some cases, endangering the environment. Opportunities for well-intentioned but overzealous investigations and prosecutions are abundant.
- The ICC poses a threat to national sovereignty. Since the Treaty of Westphalia was signed in 1648, nation-states have reigned supreme over activities within their borders. The ICC presupposes to enact legislation that has bearing on exclusively domestic issues or on citizens in the United States and abroad. Service members, peacekeepers, retired politicians, and ordinary citizens could be at risk while serving or traveling overseas. Ceding sovereignty to an unchecked international body is potentially dangerous for all parties.
- The ICC charter runs directly counter to U.S. law. In the Declaration of Independence, Thomas Jefferson stated that King George III's attempts to "subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws" were onerous and at odds with international and natural law. The Fifth Amendment to the Constitution specifically forbids an accused person from bearing witness against himself; the ICC makes no such guarantee. The same is true for due process, double jeopardy, and the right to trial by an impartial jury of peers. None of these are addressed in the Rome Charter. Moreover, in Geoffroy v. Riggs (1890), the Supreme Court concluded that the federal government could not enter into a treaty that "authorizes what the Constitution forbids." It might very well have been against the law (and likely would be subject to judicial review) for the United States to have ratified the treaty in the first place.
- War crime tribunals do not deter despots. It is naive to maintain that Saddam Hussein frets over the possibility he might end up in The Hague on trial for crimes against humanity. Pol Pot would not have cared; neither would have Idi Amin. These kinds of loathsome dictators and their peers answer to a master other than the rule of domestic or international law. Consequently, if the ICC is not going to deter despots, it must necessarily exist to exercise retribution—to make the victors feel better by punishing the defeated.
Supporters of the Rome Accords have responded to many concerns from the United States, its allies, and other unlikely bedfellows, including China. The charter has been modified and clarified, unfortunately with little improvement. The treaty remains a document frequently at odds with the U.S. Constitution, international legal traditions, and the best interests of the United States and its allies.
The ongoing challenge for the United States is that the ICC is a done deal. The United States now has lost much of the ability to affect the course of its development. We have angered allies who lump our withdrawal from the ICC with withdrawals from the Kyoto Accords and the Anti-Ballistic Missile Treaty and paint us with a broad unilateralist/isolationist brush stroke. U.S. attempts to undermine the treaty with bilateral agreements, intense politicking, and economic arm-twisting will not make the ICC go away. The answer to the question of what to do with the International Criminal Court will not be easy, demands our closest scrutiny, and might have a greater impact than expected. It is imperative for the United States to stay engaged and do what it can to make the International Criminal Court as palatable as it is possible for it to be.
Commander Davis is the Navy Fellow at the Center for Strategic and International Studies in Washington, D.C.