JUDGING THE ICC
COMMENTARY ARCHIVES, 18 Mar 2009
The cases for and against US participation in the International Criminal Court.
The Nuremberg trials at the close of World War II were controversial in their day. Advocates saw civilized nations imposing just retribution for acts of depravity; critics saw an exercise of victors’ justice, with rules of warfare imposed after the fact. From that divisive history emerged a movement to create a permanent international court in which charges of genocide, war crimes and crimes against humanity could be heard – and a long debate over the wisdom of the idea. In the 1990s, ad hoc tribunals were created to consider the atrocities in Bosnia and Rwanda. And in 1998, after negotiations in which the Clinton administration played an influential role, the United Nations adopted the Rome Statute creating the International Criminal Court.
President Clinton was never fully satisfied with the result, waiting until the closing days of his administration to sign the treaty and declining to send it to the Senate for ratification. For his part, President Bush not only officially "unsigned" the Rome Statute in 2002 but signed laws passed by the Republican Congress intended to abolish the court – going so far as to authorize the president to invade any country that detained an American on its behalf.
The 108 countries that have joined the court include most of the world’s democracies and U.S. allies; our fellow holdouts include the likes of Russia, China, Iran, North Korea, Sudan, Cuba and Saudi Arabia. The court is currently proceeding with cases against officials from four African countries, and this month, in its first such action against a sitting head of state, it issued an arrest warrant for Sudanese President Omar Hassan Ahmed Bashir on charges of war crimes in Darfur. The warrant was heralded by President Obama, who has said that the United States should join the court.
Obama’s position has reopened the debate in this country about how best to protect internationally recognized human rights across nations with varying approaches to enforcement of those rights within their borders. The discussion raises complicated questions and continues to divide people of goodwill, including the members of The Times’ editorial board. Indeed, we are so evenly divided that we are departing from our practice of presenting a single, consensus view and instead offering our strongest justifications on both sides of the issue.
The Case For
The arguments against joining the International Criminal Court are rooted in fear that Americans might one day face prosecution and judgment by foreigners in The Hague, and insecurity about our own legal and political systems being strong enough to prevent that from happening. But the ICC has jurisdiction only in cases in which a suspect’s home government is "unwilling or unable" to investigate or try him itself. The court is designed to try genocidal dictators and war criminals from countries in which the rule of law is nonexistent or the courts are in thrall to the regime. The notion that this could apply to the United States is laughable, yet it was the basis of Bush administration objections.
More specifically, opponents of the court worry that if future American leaders pursue terrorists by bending international and constitutional law to the extent that Bush and former Defense Secretary Donald H. Rumsfeld did, they could be subject to prosecution for war crimes. Yet the Rome Statute sets a high bar for an ICC investigation of leadership crimes – they must involve a high degree of magnitude and criminal intent, which would protect Bush and Rumsfeld from the charges leveled by all but their harshest critics.
If American leaders were guilty of atrocities, our own lawmakers and courts could be expected to properly investigate and prosecute them, rendering the ICC moot. And if the threat of an ICC investigation makes future American leaders think twice before approving extraordinary rendition of terrorist suspects or torture of prisoners – actions that deeply compromised this nation’s core principles and its moral standing in the world – so much the better.
Court opponents also make much of the fact that suspects are tried exclusively by judges rather than juries. The reason for this is obvious – how would the court assemble a jury of Americans to try someone in The Hague? – and the argument that it should rule out U.S. participation is specious. The United States has long been extraditing citizens to foreign countries for nonjury trials.
There are ways to protect Americans from politicized international prosecution. David Scheffer, lead negotiator for the Clinton administration in the drafting of the Rome Statute, and former Navy Judge Advocate General John D. Hutson wrote a paper last year for the Century Foundation pointing out that many of the countries that have ratified the treaty have added "declarations" to the document. These lay out the terms under which they intend to honor the pact. Among other things, the United States could declare that a panel of legal experts from outside the government (such as retired military lawyers) would have to determine that the U.S. had been unable or unwilling to prosecute its own citizens before they could be surrendered to the court, and that the U.S. would withdraw from the treaty if it determined that ICC judges or prosecutors had become too politically biased to perform their duties fairly. No objections have ever been raised to such declarations.
And there’s an added reason for the United States to join now. Countries cooperating with the ICC are considering adding a fourth "crime" to the court’s mandate: aggression. The United States could wield far more influence in defining this crime, and making sure it doesn’t tie future leaders’ hands in the fight against terrorists, as a signatory to the treaty. Obama should sign it, whether Congress is ready to ratify it or not.
The Case Against
When the United States rejects isolation and exceptionalism, and embraces transnational cooperation, it generally is moving along a progressive path that over the decades has led to mutual respect in the affairs of nations, better stewardship of the planet’s resources, the gradual reduction of poverty and, most important, broader recognition of individual rights. But not every international body is necessarily part of that movement.
The International Criminal Court has many of the features that suggest a place in the progressive tradition, such as cross-border cooperation and procedural safeguards. But a closer look shows that the ICC, as it is presently constituted, would undermine, not enhance, the march toward international justice. The United States should not join.
The ICC has little in common with multilateral treaty and trade organizations that govern the conduct of states and deal with goods, finance, fishing rights, carbon emissions, even deployment of military forces. The U.S. can and should countenance a gradual and case-by-case sharing of sovereignty on such issues for the broader good. But none of those organizations purport to have jurisdiction over an individual’s life, limb or liberty.
Protecting the fundamental right of the criminally accused to a public trial by a jury of one’s peers was a core reason for the American Revolution; it remains one of the primary purposes of our government. The Declaration of Independence cites among the reasons for rebellion against the king of Britain his assertion of power to remove citizens from their justice system and transport them out of the Colonies for trials before special courts with their own rules. That misuse of power is not simply a historical relic; it looms large today as the nation grapples with the Bush administration’s attempt to arrest citizens and try them before military tribunals without public jury trials.
We recognize that a government exists at the will of and with the consent of the governed, and therefore the governed implicitly agree to be bound by its criminal laws. International organizations exist with the consent of their member states, so only those governments, and not the individuals, have submitted themselves to the collective will.
The ICC’s defenders argue that, in practice, the United States could back out any time one of its citizens is threatened with prosecution. That’s an untenable position twice over. First, it accepts the notion that the U.S. should join with its figurative fingers crossed behind its back. That’s not multilateral cooperation; that’s a farce. And second, criminal justice is meant to protect the accused, especially the unpopular one. The U.S. government must not be permitted to offload criminal defendants to an international court whenever protections such as jury trials become inconvenient.
The issue is not whether other forms of trial are legitimate; Americans are and should be subject to the criminal justice systems of whatever nation in which they are accused of crimes. The issue is whether the United States as a matter of policy should adopt, for the first time, one of those systems as party to an extra-national authority with power over anyone in the world. Our role should be to guarantee jury rights for the accused, not to give up and say that this protection is no longer fundamental because it’s inconvenient in this new context.
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