THE CASE FOR THE INTERNATIONAL CRIMINAL COURT

In Part One of a two-part series on the International Criminal Court, FindLaw columnist Joanne Mariner discusses the history of U.S. opposition to the ICC, and why the opposition developed. Part Two will review and analyze the primary U.S. objections to the court. - Ed.

In stepping up its campaign against the International Criminal Court, the United States is now threatening an array of drastic measures. Endangering the international presence in Bosnia, warning of a possible boycott of United Nations peacekeeping missions, and pledging a policy of total noncooperation with the court's prosecutions, Washington's stubborn enmity toward the court has led it to take actions that anger even its closest allies.

Washington's actions presuppose that the answers to these questions is yes. It would be foolish and ill-advised to alienate so many of our allies, particularly at a time when our national security depends on international cooperation, if the stakes were not extremely high.

But a review of the ICC's history, rules, and structure presents a very different picture than that understood by Washington. Rather than a court that wrongly threatens U.S. interests, the evidence suggests that the United States is wrongly damaging an international tribunal, thoughtlessly undermining international legal standards, and unwisely subverting the development of international justice.

A Court for the World's Worst Criminals

The International Criminal Court, whose underlying treaty came into force this past July 1, has jurisdiction over the world's worst criminals: those who have committed genocide, crimes against humanity and war crimes. It will also have jurisdiction over the crime of aggression, if and when a definition is decided upon in the future.

Most of the definitions of crimes in the court's treaty were already well-established in international law when the treaty was drafted. In addition, there is now a substantial body of case law from existing international war crimes tribunals to flesh out their meanings. Finally, the Elements of Crimes, drafted subsequent to the court's underlying treaty, further specifies the breadth of the ICC's subject matter jurisdiction.

In terms of the temporal limitations, the court will only have jurisdiction over crimes committed after the treaty's entry into force. In other words, there is no possibility that the court will be used to right all the wrongs of the past. It is not a court for Idi Amin, but instead for the Idi Amins of the future.

Developments in the U.S. Position

There is nothing preordained about the current U.S. hostility toward the ICC. Indeed, it was not always so: the U.S. was an early and enthusiastic supporter of the idea of an international criminal court. In the early 1990s, the U.S. Congress passed resolutions in favor of the court's establishment, and high-level Clinton Administration officials were active participants in the process of drafting the court's treaty.

What finally turned the United States against the court was other countries' refusal to allow the U.N. Security Council to be the court's gatekeeper. Under the rules proposed by the United States, the Security Council was to have a veto over the court's docket. Because of the U.S. power on the Security Council, Washington was assured that a Security-Council-controlled court could would pose no threat to its interests.

Although this proposal was rejected at the 1998 Rome Conference where the ICC treaty was negotiated, the treaty did include the "Singapore compromise," by which the Security Council may delay a prosecution for twelve months if it believes the ICC would interfere with the Council's efforts to further international peace and security. Under this compromise provision, the Security Council must pass a resolution requesting the court not to proceed; an individual permanent member cannot block an investigation by exercising its veto.

In refusing to sign the ICC treaty at the Rome Conference, the U.S. found itself quite isolated. Only China, Iraq, Libya, Qatar, Yemen and Israel joined in boycotting the court, while 120 nations voted in its favor. Although the outgoing Clinton Administration did finally sign the ICC treaty in late December 2001, it continued to insist that the court was flawed. By signing the treaty, however, the U.S. would be able to remain engaged in shaping the new institution.

In other countries, ratification efforts have proceeded at a rapid pace, beyond the hopes of the court's most optimistic supporters. To date, seventy-four countries, including every country in the European Union, have ratified the ICC treaty.

U.S. Unilateralism

The U.S. may have failed to undermine the court's universality at the Rome Conference, but it has not given up in its quest to be totally exempt from court's jurisdiction. Moreover, the U.S. position with regard to the court is symptomatic of a broader unwillingness to be subject to the same international legal norms that bind other countries.

Although in the wake of the September 11 atrocities U.S. officials called for global coalition-building and multilateral cooperation, Washington's actions belie this approach. Now, perhaps more than ever in the past, the United States seems to be willing to force its agenda on the rest of the world - to substitute unilateral power for global consensus.

Those who portray the ICC as a rogue court should wonder instead whether, in persisting in its efforts to sabotage the court, the U.S. is acting more and more like a rogue state.