The Runaway Court
Apart from last year's decision to go to war against Iraq, perhaps no policy stance adopted by President George W. Bush has provoked more outrage among critics abroad-especially among the Western European intelligentsia-than his administration's steadfast opposition to the establishment of the International Criminal Court (ICC) and its worldwide campaign to secure bilateral non-surrender ("Article 98") agreements protecting American citizens from the reach of a tribunal whose jurisdiction the United States does recognize. Critics have cited the U.S. government's rejection of the ICC as further proof of the sole remaining superpower's "unilateralism" and disregard for the "consensus" of the "international community," citing as their evidence the attention that American opponents of the tribunal have focused on its potential consequences for U.S. government officials and military personnel. While the concerns of American opponents of the ICC have legitimately been centered on U.S. national interests, effective statecraft requires that the cost and benefit analysis of proposed international arrangements address the interests of all parties, not just some. Such a global approach involves considerations of universal principle and justice, as well as parochial calculations of interest.
With regard to the ICC, closer scrutiny reveals that this more comprehensive approach actually strengthens the U.S. position: the strongest argument against the court is that in their headlong rush to throw it together, its designers, lacking the practical wisdom of America's founding fathers who worried about checks and balances, created a utopian body unbounded by the constraints of-and the consequent legitimacy deriving from-democratic politics. Without these elements, the ICC will likely amount to nothing more than yet another example good intentions bending under the weight of political correctness. While proponents of the ICC have been dismissive of such concerns as emblematic of "paranoia," their maladroit assurances that the court will be independent, impartial and restrained amount to little more than articles of faith not backed by neither statutory authority nor political realities. While the recently-established ICC has yet to try a case, the recent example of the far more constitutionally-circumscribed International Court of Justice (ICJ), the principal judicial organ of the United Nations, is far from reassuring for the future of the Westphalian tradition that has formed the basis of the international system of independent sovereign states.
Last week, ICJ issued an "advisory opinion" that sweepingly declared that the security barrier that Israel has been constructing in the West Bank constituted a breach by the Jewish state "of its obligations under applicable international humanitarian law and human rights instruments" (International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, paragraph 137). The Court called upon the Israeli government to tear down the wall and compensate Palestinians whose land it has crossed or whose interests have otherwise been harmed by the construction to date. Aside from the obvious fact that its "decision" will have no effect apart from inflaming passions and otherwise further muddling a Middle Eastern political situation that is already complicated enough-the Israeli government, which had challenged the ICJ's jurisdiction all along, quickly announced that it would press ahead with the planned 437-mile stretch of electronic fences, watch posts and concrete walls, which it credits with helping to dramatically curb the number of suicide bombings in the country-the Court's action, by raising serious procedural and substantive issues, vindicates the "hermeneutic of suspicion" of those opposing the creeping jurisdictional ambitions of international tribunals in general.
What would otherwise have been considered a political matter for negotiators was brought to the ICJ for adjudication thanks to a December 8, 2003 resolution of the UN General Assembly co-sponsored by twenty-six states and the Palestine Liberation Organization, only two of which (Senegal and South Africa) are considered "free" according to Freedom House's "Freedom in the World 2004" report and one of which (Somalia) has a risible claim to being a state at all. The preliminary juridical proceedings took in the written arguments submitted by no fewer than fifty states and other international entities, including both major powers (the U.S., the U.K., the Russian Federation) and micro-states (the Marshall Islands, the Federated States of Micronesia, Palau), democracies (France, Germany, Italy) and despotic regimes (North Korea, Syria, Sudan). The oral arguments were heard on February 23-25, 2004, from both the learned and, if the truth be told, the rather unschooled counsel representing some fifteen states and international organizations.