Commentary Magazine


Against an International Criminal Court

Although one would not necessarily know it from the newspapers, a half-century of debate over the question of how to bring perpetrators of genocide and other grave crimes to justice is now coming to a head. In June, a gathering of diplomats in Rome will put the finishing touches on a United Nations-sponsored treaty to establish an International Criminal Court (ICC). This document will then be put forward for signature and ratification by the 185 member states of the world body.

Not a moment too soon, many might say. After all, the prosecution of Nazi war criminals at Nuremberg after World War II was undertaken in part to keep the horrors of mass slaughter and aggressive war from recurring. Yet, in places as disparate as Cambodia, Rwanda, and Iraq, such horrors have recurred, and recurred again, and the guilty parties have gone unpunished. The need for a standing International Criminal Court would thus appear self-evident, its absence itself a kind of crime.

In the United States, a variety of influential organizations—ranging from the American Bar Association (ABA) to monitoring groups like Human Rights Watch—is backing the UN initiative. With Secretary of State Madeleine Albright leading the charge, the Clinton administration, too, though quibbling about some aspects of the draft now under discussion, has expressed its approval of the treaty’s basic outline, and is expected in due course to submit a version to the U.S. Senate for its advice and consent.

If the ICC were to work as advertised—its professed purpose is to indict warring despots and mass murderers, extradite them, try them, and award them their just deserts—it would be no bad thing. There is, however, a problem, and one with especially severe implications for the United States: it will not, and cannot, work as advertised.

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As it is currently conceived, the ICC will be an independent international body that will combine in one institution the functions of fact-finding, prosecution, judgment, sentencing, appeal, and pardon. The ICC’s judges and prosecutors will be nominated by the signatory states, and elected by their majority vote. A complaint brought by any signatory state, or by the UN Security Council, will empower the ICC prosecutors to investigate, indict, and try individuals for such offenses as crimes against humanity and violations of the laws of war. Trials will not be by jury. Punishment, up to a maximum sentence of life imprisonment, will be decided by the court, as will requests for clemency and parole. The sole venue for appeal will be the appellate division of the ICC itself. There will be no recourse from its decisions, and no ability to overturn the law it sets.

To begin at the beginning, it is highly questionable whether the Constitution allows the U.S. government to delegate its judicial authority—to delegate, in other words, the right to put Americans on trial for offenses (like planning an allegedly illegal military action) that they have committed on American soil—to an institution that is not a court of the United States. The defining case here is Ex parte Milligan, decided shortly after the Civil War, in which the Supreme Court struck down the conviction of a civilian by a military tribunal. Because the military tribunal had not been established under Article III of the Constitution, ruled the Court, it was not “part of the judicial power of the country.” The same reasoning would clearly apply to the ICC and render its judgments against Americans unenforceable in the United States.

Even if a way around this could be found—and it would require, at a minimum, that ICC judges be appointed by the U.S. President, be approved by the U.S. Senate, and serve for life—the ICC would still be unconstitutional. In particular, though the ICC will be empowered to indict and try American citizens, its procedures will fail to provide American defendants who come before it the basic guarantees they enjoy under the Constitution’s Bill of Rights.

Thus, the Constitution’s Fourth Amendment protects Americans against unreasonable searches and seizures; the Fifth Amendment requires grand-jury indictments, forbids double jeopardy, and gives an assurance of “due process of law”; the Sixth Amendment ensures that in all criminal prosecutions the accused shall have the right to be tried “by an impartial jury of the state and district wherein the crime shall have been committed”; the Eighth Amendment forbids excessive bail and fines, as well as cruel and unusual punishment. None of these rights is adequately preserved in the ICC agreement, and most are not preserved at all.

The absence of these safeguards is all the more disturbing because the Supreme Court stated plainly in an 1890 case, De Geofroy v. Riggs, that the constitutional rights of Americans cannot be abridged by the federal government’s power to conclude treaties. That power, stated the Court, does not enable the government to “authorize what the Constitution forbids.” The Court reiterated this view in a particularly pertinent case, In re Yamashita, heard shortly after the end of World War II and dealing with the same subject matter that will come before the ICC. In any conflict between U.S. law and the laws of war, noted the Supreme Court, U.S. law must prevail: “[W]e do not make the laws of war but we respect them so far as they do not conflict with the commands of Congress or the Constitution” (emphasis added).

The fact that the constitutional case against the ICC seems straightforward has not prevented the ICC’s supporters, including the American Bar Association, from blithely dismissing it. An organization ostensibly devoted to the rule of law, the ABA describes constitutional objections to the ICC as a “red herring,” asserting that since the ICC will not be a “court of the United States,” the Bill of Rights will not apply to its proceedings. This analysis is as simple as it is wrong. The protections offered by the Bill of Rights, as we have seen, extend to every act of the entire federal government, including its agreements with other nations.

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But now suppose that the ICC treaty were somehow altered to pass constitutional muster—that is, by scrapping the current draft and starting again. Even so, compelling reasons remain for not setting up a supranational criminal court that will be empowered to stand in judgment not only of the usual despots and mass murderers but also, by definition, of the U.S. and its allies.

The danger of politicization and anti-Americanism, inherent in all international institutions, has been driven home time and again by the behavior of such bodies as the International Labor Organization, UNESCO, and the UN itself. While it is true that the level of anti-Americanism may have waned somewhat now that the cold war has drawn to an end and the Soviet Union has disappeared, the United States and its allies still have enemies, and those enemies, if they accede to the ICC treaty, will have a say in the composition of the court’s personnel. Add to the mix the many countries that are not overtly hostile to the U.S. but that wish to check an assertive American foreign policy, and inevitably a tremendous potential for mischief will arise.

Here is an example of how things can go awry. The Clinton administration has asserted that if Saddam Hussein further impedes the work of UN inspectors searching for weapons of mass destruction in Iraq, the U.S. has the legal right to strike Baghdad without further action by the UN Security Council. Yet three of the five permanent members of the Council—Russia, China, and France—disagree. They maintain that a U.S. attack would be a violation of the UN mandate and consequently of international law.

If a court like the ICC were in place, a decision to hit Saddam Hussein would leave the President, and each and every American who participated in the formulation and execution of the military operation, vulnerable to investigation and prosecution. How might the court’s proceedings unfold? The prosecution might root its case in the civilian casualties that Iraq would inevitably incur in the course of the U.S. strike. If the ICC determined that sufficient evidence existed to hand up an indictment for violation of the laws of war, the United States would be legally bound to surrender the individuals charged, be they military or civilian, Secretary of State or GS-7 file clerk, President or private. While there would be no enforcement mechanism on U.S. soil to compel acquiescence, the ICC could issue international warrants; those under indictment would then be unable to travel overseas for fear of arrest. The ICC could also opt to begin proceedings against U.S. officials in absentia.

Naturally, the President and other responsible officials would have a number of defenses at their disposal. They could claim, for example, that the attacks on Iraq had been authorized by previous Security Council resolutions and that civilians were not deliberately targeted. Ultimately, however, the merits of the case would be for the ICC to determine, and the court’s findings, as noted above, could not be appealed except to the ICC itself.

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A scenario like this one may seem unlikely. But whether or not it ever comes to pass, the very existence of a court that can at any time initiate investigations of U.S. actions around the globe will almost certainly impose inhibitions on the conduct of American foreign policy. In fact, even the Clinton administration is troubled by the prospect of the ICC’s becoming an uncontrollable rogue institution. “We do have concerns about a prosecutor who would act on his or her own authority,” admits David Scheffer, the head of the U.S. delegation to the negotiations.

To keep the ICC within acceptable bounds, the administration has sought to revise the mechanism that will trigger its initiation of a case; these proposed revisions, however, fall far short of the mark. For example, the U.S. wants to require “complementarity,” which means that the ICC would become involved in prosecuting individuals only if their own government had failed to bring them to justice. But this particular proposal comes with a qualification: the power to determine whether a good-faith effort at prosecution had been made would be retained by the ICC itself. It is a generous loophole, and potentially a lethal one.

The U.S. also wants to require a referral by the UN Security Council before the ICC can investigate any particular conflict or atrocity. This would allow the United States to exercise its veto when American interests are threatened. But one can easily imagine what would happen in practice: on every occasion in which the U.S. considered casting its veto to prevent the ICC from taking action, it would be accused of hypocrisy and lawlessness, and find itself under intense pressure to acquiesce. And such occasions are likely to abound, given the investigatory latitude the ICC is to enjoy.

To understand what is at stake here, let us return to the example of Iraq, and let us suppose that Kuwait, say, were to attempt to bring Saddam Hussein before the ICC for committing war crimes. An ICC investigation into this matter could easily expand to encompass an inquiry of another sort entirely—namely, into the war crimes that Saddam Hussein himself has alleged were committed by the U.S. against Iraq. To avert this possibility, the U.S. might then be forced to exercise its veto—and thus block even friendly states like Kuwait from initiating a referral.

Indeed, to avoid having its current or former leadership brought before an international tribunal to answer for American foreign policy, Washington might find itself compelled to veto any referral of any conflict where American arms were involved. In the end, all the ICC would then have accomplished would be to tie our foreign policy in knots. In the eyes of some around the world, to be sure, this might well seem a desirable goal; but how it would serve our own interests—or, for that matter, the interests of peace and the rule of law—is a mystery.

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Do the palpable flaws of the ICC treaty mean that the world community is helpless to bring outlaws to justice? Hardly. The UN Security Council already possesses the authority to establish tribunals to investigate and punish war crimes. It has, in fact, recently established two: the international criminal tribunal for the former Yugoslavia, and the international criminal tribunal for Rwanda. Unlike the ICC, however, their territorial jurisdiction and temporal duration are limited. Thus far, the Yugoslav tribunal has issued eighteen indictments against 74 individuals, of whom twenty are in custody. It concluded its first trial, of a Serbian concentration-camp guard, last July, sentencing him to prison for twenty years. A number of other cases are to be heard in the next few months. Some may consider this too little, too late; but with sufficient international backing, such courts can accomplish a great deal.

The ICC also promises to accomplish a great deal—but precisely what those accomplishments will be is another matter. In the name of international law, the treaty will undermine our own system of justice. In the name of bringing aggressors to account, it will diminish our own ability to do exactly that, while augmenting the possibility that we or one of our close allies will sooner or later find ourselves in the dock.

The Clinton administration’s penchant for multilateralism is by now an old story. Even so, it is astonishing that it has so fervently embraced a document with such obvious faults. Is this really the straitjacket in which the world’s greatest power, and its best hope for peace, wishes to place itself?

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