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Global Tribunals V. U.S. Values

John Fonte

This year marks the tenth anniversary of the creation of the International Criminal Court (ICC). In September, at a conference entitled “Celebrate-Reflect-Promote,” leaders of the American Bar Association (ABA) announced that they will work vigorously for U.S. ratification of the ICC treaty.

A former president of the ABA touted the formation of a bipartisan advisory committee to promote the ICC including, among others, Sandra Day O’Connor; Judge Patricia Wald; Ambassador David Scheffer, former U.S. chief negotiator during the ICC deliberations in Rome; Cherif Bassiouni, an emeritus DePaul University law professor who played a major role during the negotiations; and William Howard Taft IV and John Bellinger III, two Bush administration State Department legal advisers.

The ABA project contends that the ICC is needed as a permanent global court to deal with the most egregious international transgressions, including genocide, crimes against humanity, war crimes and crimes of aggression. The court, the ABA declares, will end impunity for the worst international criminals and act as a deterrent to future war crimes. American fears of politicized abuse of the ICC are exaggerated, they say, because there are sufficient safeguards to protect American officials and soldiers. Further, as a leader of the ABA initiative maintains, joining the ICC “not only serves the interests of the United States, but safeguards the values that we as a civilized people have long cherished.”

Indeed, that is the key question: Does the International Criminal Court serve U.S. interests, and is it consistent with American values? The answer is no on both counts.

The ICC claims jurisdiction over nation-states that are not a party to the treaty. The alleged war crime need only take place on the soil of a state that has joined the ICC. Thus, although the United States has not ratified the ICC treaty, American soldiers and officials accused of war crimes on the territory of a nation that has ratified the treaty could be brought before the court.

Supporters of the ICC contend that the principle of “complementarity” would safeguard American interests. Under complementarity, a state would have the right to try its own citizens before the ICC intervened. However, if a state were “unable or unwilling” to conduct a serious trial, the ICC could proceed. For example, if American personnel were tried in U.S. courts and acquitted, the ICC could determine that the national courts were “unwilling” to convict. The ICC could then act on its own. The ultimate decision-making authority for the principle of complementarity rests with the ICC.

Unlike prosecutors in the American judicial system (who are part of either the federal or state executive branches of government), the chief ICC prosecutor is not accountable to any democratic executive or legislative authority. Instead he or she is, in essence, a “global special prosecutor,” whose only checks and balances are two ICC judges on a pre-trial chamber. During negotiations on the Rome Statute, the treaty that established the court in 1998, supporters of the global tribunal succeeded in ensuring that this new supranational legal entity would be independent of the UN Security Council. The Clinton administration tried but failed to make ICC investigations and trials subject to approval by the Security Council, which would, of course, have provided a safeguard for Americans. In contrast to the ICC, Security Council-approved international war crimes courts have, on occasion, served U.S. interests and values in the Balkans and Rwanda.

Another major problem is that the United States disagrees with the ICC’s definition of what exactly constitute “war crimes.” The ICC uses, as its primary standard, Additional Protocol I of the Geneva Conventions of 1949, which was adopted in 1977 under pressure from the Third World and Soviet blocs. The United States adheres to the Geneva Conventions of 1949 but does not recognize Protocol I. In the view of the Reagan administration (and the New York Times and the Washington Post at the time), Protocol I privileges irregulars, guerrillas and terrorists; puts civilians at greater risk; and limits the responses and weapons (including air power) of the United States and other developed powers. For example, unlike the Geneva Conventions of 1949, under Protocol I irregulars and terrorists are permitted to hide among the civilian population and not reveal themselves until right before an attack. This both endangers civilians and handicaps conventional forces.

At the 2010 Kampala conference, the ICC defined the individual “crimes of aggression” in which state officials who implement aggression are the perpetrators and established the court’s jurisdiction. Crimes of aggression are defined broadly and include blockades, bombardments, air strikes and commando raids “inconsistent with the Charter of the United Nations.” JFK’s naval “quarantine” of Cuba, Reagan’s air strikes on Libya, George H. W. Bush’s invasion of Panama and Bill Clinton’s missile strikes on Iraq could well qualify as acts of aggression. This is because the ultimate decision on what constitutes “aggression” is decided not by the Security Council but by the ICC itself. The ICC prosecutor can act after only informing the Security Council, waiting six months and getting approval from the full pre-trial division of ICC judges.

According to the UN Charter, the Security Council has “primary responsibility for the maintenance of international peace and security.” Nevertheless, the Kampala conference determined that aggressive actions by states that by their “character, gravity, and scale constitute a manifest violation of the [UN] Charter” should be defined not by the Security Council but by the judges and prosecutors of the International Criminal Court.

Obama administration officials attended the Kampala conference as observers. They argued, unsuccessfully, against the broad definition of aggression and opposed adding this crime to the ICC’s jurisdiction. They did declare, however, that they were satisfied with the final results of the conference because nonmember-state parties such as the United States remained exempt from the ICC’s jurisdiction for the crime of aggression, even if an act occurred on the territory of an ICC member state. In addition, the aggression amendments will not go into effect until the member states vote again by 2017. Thus, U.S. State Department legal advisor Harold Koh stated, “the outcome protected our vital interests.”

The administration’s approach to the ICC merely obtains “opt-outs” for U.S. forces and delays implementation while not seriously opposing and disrupting what is clearly an evolving international consensus of global norms. This consensus essentially criminalizes core U.S. military practices (air strikes, commando raids) and places decision-making authority for international war crimes outside of the UN Security Council and the U.S. vetoto say nothing of the role of Congress and the U.S. Constitution. In addition, the Obama administration continues to cooperate and provide technical support to the ICC, hence further legitimizing the court, as did the Bush administration during its final years.

Regardless of who acts as its chief prosecutor or specific actions on any given controversy, the ICC’s problem is systemic. The ICC, as an institution, is preordained to conflict with U.S. national-security interests and American constitutional mores. This inevitable clash is further guaranteed by a critical mass of undemocratic “nonaligned nations” within the 121-nation ICC membership. Indeed, under ICC rules the judges from an undemocratic state (Chad, Congo or Tajikistan, for example) could determine the fate of citizens of democratic states that have refused to ratify the treaty (India, Israel, the Czech Republic).

The ICC does not “serve U.S. interests” or “safeguard our values” as the ABA contends. On the contrary, the International Criminal Courtby its own rules, broad claims of authority, end run around the UN Security Council and overreaching definitions of war crimesis systemically adversarial to American interests and values.

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