Be Wary of the War Crimes Court, but Not Too Wary

Although the U.S. shouldn't ratify the new International Criminal Court, it shouldn't repudiate it either

The first international court in history with the power to punish war crimes, crimes against humanity, and crimes of genocide committed anywhere in the world will officially become a reality on April 11 and, if all goes according to plan, will be up and running sometime next year. Like the more limited, ad hoc international tribunals established by the U.N. Security Council to pursue perpetrators of atrocities in the former Yugoslavia (including Slobodan Milosevic, now on trial at The Hague) and in the 1994 genocide in Rwanda, this new International Criminal Court embodies the noble aspiration to extend the rule of law worldwide. (See this issue, p. 988.)

Fifty-six nations, including all 43 members of the Council of Europe except Greece and Ireland, have already ratified the 1998 treaty calling for creation of the International Criminal Court. With another batch planning to follow suit on April 11, the 60 ratifications needed to bring the court into existence are at hand. The ICC will have the power to bring the likes of Saddam Hussein, Osama bin Laden, or Pol Pot—if it can get ahold of them—to justice for any future acts of mass murder.

So far, so good. But this new court could also, at least in theory, prosecute American leaders and service members for "war crimes" that the United States considers to have been justifiable military operations. For this reason, the Clinton Administration never fully embraced the ICC: Although President Clinton signed the treaty on December 31, 2000, he specified that it should not be ratified by the Senate—and thus made binding on the United States—unless and until the ICC provided satisfactory protections for Americans. And now President Bush is considering an unprecedented step that would gratify many congressional conservatives but scandalize our allies: formally nullifying Clinton's signature.

Whether or not Bush takes such a provocative step, he has made clear that the United States will neither join nor welcome the new court unless and until the treaty is revised to shield Americans from prosecution. This stance is justifiable to a point: The ICC's noble aspirations are somewhat alloyed by a less noble impulse, among Europeans and others, to stand aside while American bombers and soldiers do the dirty work of beating the bad guys into submission—and then sit in judgment on whether the Americans went too far.

Consider a commentary published by one of Spain's most famous judges, Baltasar Garzon, in El Pais and Financial Times some three weeks after the mass murders of September 11, and before the U.S. bombing of Afghanistan had begun. Passionately denouncing "the bellicose plans proclaimed repeatedly by U.S. leaders," Garzon declared that "justice ... should be brought to bear not only on the Taliban for its brutal and oppressive regime but also on the leaders of Western countries, who, irresponsibly and through the media, have generated panic among the Afghan people." He also predicted—quite inaccurately—that a U.S. attack would produce "what is certain to be a human catastrophe" in Afghanistan.

Garzon's itch to put U.S. and other Western leaders on trial is of particular interest because this is the sort of fellow who just might be—or might a few years ago have been—a very plausible candidate to become a judge or independent prosecutor on the International Criminal Court. The London Independent described him nine years ago as Spain's "best-known and most-respected judge." He became the toast of human-rights circles worldwide in 1998 when he pushed Britain to extradite former dictator Augusto Pinochet from England to face charges in Spain for atrocities committed in Chile during his regime. Garzon has displayed no similar enthusiasm for pursuing bloody-handed tyrants of the left such as Fidel Castro. Were such a man to serve as the chief ICC prosecutor, with jurisdiction to look into suspected atrocities all over the world, the opportunities for politically motivated selective prosecution would be limitless. And Ariel Sharon would probably have more to fear than Yasir Arafat.

To be sure, the ICC treaty does contain what former Ambassador David Scheffer, who was the Clinton Administration's chief negotiator, calls a "matrix" of provisions designed to prevent a runaway prosecutor or politically motivated judges from harassing the United States or any other nation with unwarranted investigations or prosecutions: Investigations can be launched only with the approval of a three-judge panel. The ICC and its prosecutor are supposed to defer to any genuine investigation or prosecution by the United States or any other nation (member or nonmember) of alleged war crimes by its own citizens. And the U.N. Security Council will have the power to suspend any prosecution.

But Scheffer was unable to obtain the kind of U.S. veto—in the form of a requirement that the U.N. Security Council specifically vote to authorize each new investigation—that would have virtually guaranteed Americans immunity. Instead, an ICC investigation can proceed unless all five permanent members of the Security Council agree to suspend it. Three-judge panels are not always effective restraints on the zeal of prosecutors, as was demonstrated by Lawrence Walsh and Kenneth Starr, among others. And if the ICC found U.S. authorities "unable or unwilling" to fairly investigate or prosecute specified allegations against their own leaders or soldiers, the ICC's prosecutors could proceed.

An unlikely scenario, perhaps. But it's not so hard to imagine the ICC or its prosecutor second-guessing the United States on such subjective judgments as whether bridges and electrical grids were appropriate military targets, or whether bombing missions inflicted civilian casualties far out of proportion to any military objective and thus amounted to war crimes.

Such determinations would be made amid heavy lobbying by blame-America-first human-rights activists such as Amnesty International. In 1999, that group supported a complaint by European and Canadian law professors to the International Criminal Tribunal for the former Yugoslavia alleging that NATO had committed crimes against humanity by killing too many innocent Serbian civilians in the bombing campaign that ended the Serbs' ethnic cleansing of Kosovar Albanians. The tribunal's prosecutors eventually found no evidence to support prosecution. But to the horror of many in the Pentagon, prosecutors did not dismiss the complaint out of hand. And that tribunal, unlike the ICC, was operating under a strictly limited Security Council grant of jurisdiction.

So one key question for American policy makers, suggests international law expert Ruth Wedgwood, is: "Do you want an Italian law professor"—or a French prosecutor, or a Spanish judge—"running your war?"

A more fundamental problem is that the single-minded focus of prosecutors and judges, especially unelected and unaccountable ones, on exposing and punishing wrongdoers may conflict with the need to settle long-running, bloody conflicts by using the arts of politics, including de facto or de jure amnesties, to induce those wrongdoers or their allies to relinquish power. Could South Africa's apartheid regime have been persuaded to step aside peacefully had its leaders faced the risk of being extradited to, and prosecuted by, an international criminal court? The legal maxim fiat justitia, ruat coelum—"let justice be done, though the heavens fall"—is singularly ill-suited to the messy realm of international affairs.

So we should not ratify the ICC in its current form or acquiesce in any efforts by it to assert jurisdiction over Americans. But like it or not, we are going to have to live with this new court. And there is reason for hope that it will make the world a better place. We should continue to support the concept of an international criminal court (subject to strict Security Council control), should keep pushing for protections that might enable us someday to ratify the ICC, and should pursue a policy of constructive engagement, not active hostility.

Above all, President Bush should eschew conservative calls to "un-sign" the treaty. That would accomplish precious little other than to spit in the faces of allies whose support we need in the war against terrorism. Such an "un-signing" would also make an enemy of an important and powerful institution that we should cultivate as a friend; would set a troubling precedent for other nations cavalierly to walk away from treaties they have signed; and would undermine our stance as champions of the rule of law in international affairs.

Getting along with the ICC will require the kind of patient diplomacy that the Bush Administration failed to display when it repudiated the hopelessly impracticable Kyoto Protocol without offering any serious alternative strategy for cutting carbon emissions. But patience may be the only way to demonstrate our commitment to the underlying goal of ending the impunity traditionally enjoyed by the tyrants—Joseph Stalin, Idi Amin, Pol Pot, Saddam Hussein (so far), and many more—who murdered, tortured, starved, gassed, and brutalized well over 100 million people during the 20th century alone.