By long-standing American principles, the ICC's structure utterly
fails to provide sufficient accountability to warrant vesting the
Prosecutor with the Statute's enormous power of law enforcement.
Political accountability is utterly different from "politicization",
which all agree should form no part of the decisions of either the
Prosecutor or the Court. Today, however, the ICC has almost no
political accountability and carries an enormous risk of
politicization. This condition has little to do with our fears of
isolated prosecutions of individual American military personnel
around the world. It has everything to do with the American fear of
unchecked, unaccountable power, and explains why America properly
stood apart in Rome from Europe and Canada.
The Real International Interests at Stake
Beyond the particular American interests adversely affected by the
ICC, we can and should worry about the more general errors of the
ICC's supporters that will affect all nations. Thus, although the
gravest danger from the American perspective is that the ICC will be
overbearing and unaccountable, there is an at least equally likely
possibility that, in the world at large, the new institution will be
powerless and ineffectual. While this may sound contradictory, the
ICC is ironically one of those rare creations that may be
simultaneously dangerous and weak because its intellectual
underpinnings are so erroneous or inadequate in so many respects.
The most basic error is the belief that the ICC will have a
substantial, indeed decisive, deterrent effect against the possible
perpetration of heinous crimes against humanity. Ironically, ICC
proponents now criticize Nuremberg as an inadequate, ex post facto
response to such crimes, and argue instead for the deterrent value of
a permanent Court and Prosecutor.
Rarely if ever has so sweeping a legal proposal had so little
empirical evidence to support it. The evidence demonstrates instead
that the Court and the Prosecutor will not achieve their central goal
because they do not, cannot, and should not have sufficient authority
in the real world.
Behind the optimistic rhetoric, ICC proponents have not a shred of
evidence supporting their deterrence theories. In fact, they
fundamentally confuse the appropriate roles of political and economic
power, diplomatic efforts, military force, and legal procedures. No
one seriously disputes that the barbarous actions about which ICC
supporters complain are unacceptable, but those supporters make a
fundamental error in trying to transform matters of power and force
into matters of law. Misunderstanding the appropriate roles of force,
diplomacy, and power in the world is not just bad analysis, but bad
and potentially dangerous policy.
Recent history is filled with cases where even strong military force
or the threat of force failed to deter aggression or gross abuses of
human rights. ICC proponents concede as much when they cite cases
where the "world community" failed to pay adequate attention, or
failed to intervene in a sufficiently timely fashion to prevent
genocide or other crimes against humanity. The new Court and
Prosecutor, it is said, will now guarantee against similar failures.
But this is fanciful. Deterrence ultimately depends on perceived
effectiveness, and the ICC is most unlikely to have that. Even if
administratively competent, the ICC's authority is likely to be far
too attenuated to make the slightest bit of difference either to the
war criminals or to the outside world. In cases where the West in
particular has been unwilling to intervene militarily to prevent
crimes against humanity as they were happening, why will a potential
perpetrator be deterred by the mere possibility of future legal
action? A weak and distant Court will have no deterrent effect on the
hard men like Pol Pot most likely to commit crimes against humanity.
Why should anyone imagine that bewigged judges in the Hague will
succeed where cold steelhas failed? Holding out the prospect of ICC
deterrence to the truly weak and vulnerable is a cruel joke.
Beyond the predictive issue of deterrence, it is by no means clear
that "justice" is everywhere and always consistent with the
attainable political resolution of serious disputes, whether between
or within states. It may be, or it may not be. Unfortunately for
moralists and legal theoreticians, human conflict teaches that
policymakers must often make trade-offs among inconsistent
objectives. This can be a painful realization, confronting us as it
does with the irritating facts of human complexity, contradiction,
and imperfection. Some elect to ignore these troubling intrusions of
reality, but those who would ponder the ICC's practical merits do not
have that option.
The existing international record of adjudication is hardly
encouraging. The ICC's framers tacitly recognize this problem
because, with virtually no debate in Rome, and with the full
endorsement of the Clinton administration, they created the ICC
outside of the United Nations system. So visibly separating the ICC
from the International Court of Justice tacitly acknowledges that the
ICJ has failed to garner the legitimacy sought by its founders in
1945. In some respects, this is more than ironic, because much of
what was said then about the ICJ anticipates recent claims by ICC
supporters. These touching sentiments were not borne out in practice
for the ICJ, which has been largely ineffective when invoked and more
often ignored in significant international disputes. Indeed, the
United States withdrew from the mandatory jurisdiction of the ICJ
after its erroneous Nicaragua decisions, and it has even lower public
legitimacy here than the rest of the UN.
Among the several reasons why the ICJ is held in such low repute, and
what is admitted privately in international circles, is the highly
politicized nature of its decisions. Although ICJ judges supposedly
function independently of their governments, their election by the UN
General Assembly is highly politicized, involving horse trading among
and within the UN's several political groupings. Once elected, the
judges typically vote along predictable national lines except in the
most innocuous of cases. Thus, the ICJ's failure to generate
widespread international respect and legitimacy on "civil" matters
may well provide the best explanation of why the new "criminal" court
was established outside the UN.
The ICJ's failure is a continuing sore point for ICC supporters, one
of whom, Kenneth Roth, recently acknowledged that much will depend
"on the character and professionalism of the ICC prosecutor and
judges." Roth cites the skill and integrity of several jurists
serving on the Bosnia and Rwanda tribunals, and concludes that "there
is every reason to believe that the ICC will be run by jurists of
comparable statute." Utterly absent from Roth's justification is even
a mention of the judges of the ICJ during more than fifty years of
existence, though it is surely an institution more comparable to a
permanent ICC than are the ad hoc Bosnia and Rwanda courts. Roth's
silence speaks for itself.
Although supposedly a protection for the ICC's independence, the
provisions for the "automatic jurisdiction" of the Court and the
Prosecutor are unacceptably broad. They constitute a clear break from
the basic premise of the ICJ that there is no jurisdiction without
the consent of the state parties. Because parties to the ICC may
refer alleged crimes to the Prosecutor, we can virtually guarantee
that some will, from the very outset, seek to use the Court for
In fact, the Rome Conference substantially minimized the Security
Council's role in ICC affairs. The limited remaining role for the
Security Council in the ICC is found in Article 16 of the Statute of
Rome. Under that article, the Prosecutor is free to investigate,
indict, and try before the Court completely at will, unless and until
the Security Council acts to stop him. In requiring an affirmative
vote of the Council to stop a case, the Statute shifts the balance of
authority from the Council to the ICC. Moreover, a veto by a
Permanent Member of such a restraining Council resolution leaves the
ICC completely unsupervised. It seriously undercuts the role of the
five Permanent Members of the Council, and radically dilutes their
veto power. This was precisely the objective of the ICC's proponents.
Since the UN Charter charges the Council with "primary responsibility
for the maintenance of international peace and security", it is more
than passingly strange that the Council and the ICC are now to
operate almost independently of one another. Strange, that is, only
if one is unfamiliar with the agenda of many governments and
non-governmental organizations supporting the ICC, whose agenda has
for years included a downgrading of the Security Council and
especially the weakening of the veto power of its five Permanent
This attempted marginalization of the Security Council is a
fundamental new problem created by the ICC that will have a tangible
and highly detrimental impact on the conduct of U.S. foreign policy.
The Council now risks having the ICC interfere in its ongoing work,
with all of the attendant confusion between the appropriate roles of
law, politics, and power in settling international disputes.
Accumulated experience strongly favors a case-by-case approach, politically and legally, rather than the inevitable resort to adjudication contemplated by the ICC. One contemporary alternative is South Africa's Truth and Reconciliation Commission. In the aftermath of apartheid, the new government faced the difficult task of establishing and legitimizing truly democratic governmental institutions while dealing simultaneously with earlier crimes. One option would have been widespread prosecutions against those who perpetrated human rights abuses, but the new government chose a different model. Under the Commission's charter, those who committed human rights abuses could come before it to confess past misdeeds. Assuming they confessed truthfully, the Commission could in effect pardon them from prosecution. This approach was intended to make public more of the truth of the apartheid regime in the most credible fashion, to elicit thereby admissions of guilt, and then to permit society to move ahead without the continual opening of old wounds that trials, appeals, and endless recriminations might bring.
I do not argue that the South African approach should be followed everywhere, or even necessarily that it is the correct solution for South Africa. But it is radically different from that contemplated by the ICC, which seeks vindication, punishment, and retribution as its goals, as is the case for most criminal law enforcement institutions. The clear point is that, in some disputes, neither retribution nor complete truth-telling is the best objective. In many former communist countries, for example, citizens are still wrestling with the handling of secret police activities of the now defunct regimes. So extensive was the informing, spying, and compromising in some societies that a tacit decision has been made that the complete opening of secret police and Communist Party files will either not occur, or will happen with exquisite slowness over a very long period. In effect, these societies have chosen "amnesia" because it is simply too difficult for them to sort out relative degrees of past wrongs, and because of their desire to move ahead.
I do not argue that the South African approach should be followed everywhere, or even necessarily that it is the correct solution for South Africa. But it is radically different from that contemplated by the ICC, which seeks vindication, punishment, and retribution as its goals, as is the case for most criminal law enforcement institutions. The clear point is that, in some disputes, neither retribution nor complete truth-telling is the best objective. In many former communist countries, for example, citizens are still wrestling with the handling of secret police activities of the now defunct regimes. So extensive was the informing, spying, and compromising in some societies that a tacit decision has been made that the complete opening of secret police and Communist Party files will either not occur, or will happen with exquisite slowness over a very long period. In effect, these societies have chosen "amnesia" because it is simply too difficult for them to sort out relative degrees of past wrongs, and because of their desire to move ahead.Essay Types: Essay