Since its creation in 1998, many have understood the International Criminal Court to be a way for those in the world who oppose but cannot match America’s military power to attack it legally instead. At last, that has now happened with the court’s recent decision to investigate the U.S. military for potential war crimes in Afghanistan. If successful, the ICC prosecutor may then charge individual Americans for war crimes.
How did we come to this place, where Americans could be ordered to stand trial in The Hague for war crimes? It is a story of good intentions captured by a small but vocal group and turned to this group’s own political ends. After special international criminal tribunals were formed to deal with overwhelming human rights atrocities in Rwanda and the former Yugoslavia earlier in the ’90s, there was a sense that a permanent court should be established to deal with these. The United States not only supported the idea but was one of its leading proponents and organizers.
But a funny thing happened on the way to the creation of the ICC. A group of human rights nonprofit groups and smaller nations formed a coalition to change the entire nature and scope of the proposed court. Instead of seeing cases referred by the U.N. Security Council as was done previously, the coalition wanted an independent prosecutor who could range over the world and bring forward his own cases. Instead of limiting parties to citizens of nations that agreed to the treaty creating the court, as was done historically, the council wanted jurisdiction over anyone who committed a crime on the territory of a signatory state. It also sought to add a new crime to the traditional mix: the crime of aggression.
The point of these politicized human rights activists was to create what they called “a court worth having,” not the sort of institution that would attract wide support. Instead of taking the time to engage in compromise and negotiation to attract most of the nations to join, the court was formed when only 60 of the world’s 190-plus nations signed on.
Rightly, the U.S. refused to agree to this kind of aggressive political institution. We did not sign the treaty and took some comfort in the fact that the court would only act in cases where local judicial systems either could not or would not act. Indeed, that was its original purpose — to be available when local systems were overwhelmed by abuse, as in the Rwandan genocide or when powerful dictators or national leaders refused to investigate their own people.
Especially when you look at questions of war and military force, there really is no true international “law.” Most treaties establish something more on the order of international norms to which nations aspire, but they are easily violated when national interest dictates. There is no international constitution, no global police force, to enforce these norms, so in that sense, it is a misnomer to think of them as law in the way Americans regard law.
Thus, an institution with the bold aspirations of the ICC becomes, in effect, politics by other means. Even though the U.S. has not signed onto the ICC and has arguably the strongest judicial system in the world, the ICC nonetheless creates an opportunity to try to put on a political trial of American soldiers and officials, which is precisely what many of the proponents of the court sought in the first place.
Just as the U.S. said “no” when the court was formed, it must just say “no” again if the prosecutor comes calling on Americans to be investigated or stand up in court.
David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution. He is the co-author, with Gordon Lloyd, of How Public Policy Became War, published May 7.
