The International Criminal Court: Idealpolitik vs. Realpolitik and U.S. Opposition

Prelude to the ICC: The Need for International Criminal Justice

As argued by Christopher Rudolph (2001: 655), the nature of conflict has shifted in ways that, in terms of frequency, have turned toward localized intercountry struggles. The link between ethnic conflict and acts of horrendous brutality has been significantly strengthened as the prevalence of these conflicts has risen and is now threatening a new world disorder. The atrocities committed in Cambodia at the hands of the Khmer Rouge regime during the 1970s, and in the civil war of Sierra Leone in the 1990s where the clashes between government forces and the Revolutionary United Front (RUF) had devastating costs for the people, formed part of the backdrop that fueled international calls for justice (Rudolph, 2001: 655). It was this outrage, Prakash (2002: 4113) argues, which united global actors in a broadening consensus that crimes against humanity should not any longer be swept aside, and brought about renewed efforts in entertaining the notion of a permanent criminal court as a complement to national judicial systems to strengthen the global legal order.

Justice on an international scale, in response to war crimes and crimes against humanity, had until the coming into effect of the ICC been carried out through the formation of ad hoc criminal tribunals dedicated to the principles laid down by the Nuremberg Tribunal following the Second World War. As Robert Tucker (2001: 71) argues, the idea of an ICC was not a new one in the 1990s, but instead an idea that formed in the aftermath of Nuremberg as criticisms mounted. "The Victors' Law" was how Nuremberg was perceived by many, and the need for an independent court with the authority to try individuals for crimes violating international law, regardless of position and state protection, was made apparent. The ICC was to provide the framework for establishing itself as a mechanism not just for holding war criminals accountable, but for peace as well. By extending justice to war-torn regions of the world, the hope was that the ICC could calm the animosity arising in the power vacuum of fallen regimes and bring about national reconciliation (Rudolph, 2001: 656).

The progress toward an ICC stagnated, however, and the International Criminal Tribunal for the former Yugoslavia (ICTY) as well as for Rwanda (ICTR) exhibited with all clarity that a permanent court could not hope to rest solely upon the authority vested in it. As argued by Bekou and Cryer (2007: 60), the ICTY—and by extension the later ICC—requires, as an essential component, the support from sovereign states in order to function. The lack of supranational authority at the systemic level is not in practice mitigated by a permanent court without any real enforcement power, and because of this the court must rely on states to lend it strength. Jack Goldsmith (2003: 92–93), also referring to the ICTY, goes into detail in explaining this. Slobodan Milošević was ousted not because of a court ruling, but by U.S. military and economic pressures, and he was delivered to the court only when the U.S. and the IMF threatened to withhold half a billion dollars in aid. He goes on to say that the lofty hopes and dreams of the ICC when the Rome Statute was adopted are unrealistic as long as the United States remains in opposition (Goldsmith, 2003: 89).

How then did the United States end up opposing an international judicial regime to curb human rights violations when, as argued by Amann and Sellers (2002: 382–383), the U.S. has had a long-standing commitment to ad hoc tribunals and, as Tucker (2001: 73) quotes David Scheffer, the chief negotiator for the U.S. on the Rome Statute, the notion that ad hoc justice is slow and limited in scope and that a permanent court, readily available when needed, would provide a stronger deterrent for human rights violations?

The ICC and the United States

It quickly became apparent that a permanent court as the United States had envisioned it contrasted heavily with the views of a majority of the nations that met in Rome in 1998. The United States, as argued by Tucker (2001: 74, 78), sought to establish a court that would essentially complement the power of the Security Council (SC) and would be forced to rely on referral of cases by it. The U.S. wanted to ensure that the ICC could not prosecute American soldiers without U.S. consent and would not seek to encroach upon the powers of the council. This policy goal was irreconcilable with the wishes of most other parties at Rome, who believed that the veto-wielding powers of the SC were part of the problem.

Not only would an ICC subject to SC referral make the five permanent members immune to prosecution, it would also undermine universal justice, as illustrated by the failure of the SC to establish tribunals in hotspots around the world (Goldsmith, 2003: 90). The compromise became an ICC independent from the SC, but without the power of universal jurisdiction. A compromise that, according to Goldsmith (2003: 92), watered down the authority of the ICC and prevents it from achieving its principal goal: curbing human rights violations. The ICC does not have jurisdiction over non-parties to the Rome Statute acting within their own territory and thus fails to address the number one source of crimes against humanity: ethnic struggles within national borders.

The United States likewise opposed the composition of the body granting the ICC its powers, the assembly of state parties. The fact that each party to the Rome Statute has a single vote in matters that can expand ICC power or redefine the powers already vested in it, and can put forth candidates for judges to preside over the court, raised concern that U.S. forces abroad could become the subject of politically motivated prosecutions as a way for sovereign states, unable to influence U.S. foreign policy directly, to instead target those that implement it (Lietzau, 2001: 127, 136; Amann & Sellers, 2002: 390).

The danger of such policy is that it might discourage the United States from entering into operations aimed at halting human rights violations (Lietzau, 2001: 126, 128; Goldsmith, 2003: 95; Mayerfeld, 2003: 106). The sad irony is that the ICC will have likely affected the country most capable of preventing crimes against humanity more than it will have affected those countries in which they take place (Goldsmith, 2003: 99). As Lietzau (2001: 126) puts it: "No other country has up to 200,000 troops engaged in operations outside its borders" and "to inhibit those forces is to take a step back in international peacekeeping."

The United States, as argued by Amann & Sellers (2002: 385), will not cede sovereignty to an institution which claims to have the power to override the U.S. legal system and pass judgment on its foreign policy. Doing so would violate the strongly held belief that only the American people should assess the accountability of the United States and, under the Constitution, must retain ultimate authority (Tucker, 2001: 78).

U.S. opposition to the ICC came to light in the passing of the American Service members' Protection Act in 2002, which enables the President of the United States to "use all necessary measures to release from captivity U.S. or allied personnel held by the ICC" (Goldsmith, 2003: 97), and in UN Resolution 1422 of 2002, by which the U.S. forced through an exemption for U.S. forces from ICC jurisdiction in UN peacekeeping missions by threatening to veto the continued effort in Bosnia (Weller, 2002: 706–708). Why then did President Clinton sign the treaty? Amann & Sellers (2002: 383) argue that, fully anticipating an act of voluntary defection, American objectives shifted to insulating the U.S. from the effects of the ICC, and becoming a signatory ensured continued influence (Tucker, 2001: 71, 78).

Adoption of the Rome Statute Against Great Power Opposition

Opposition to the Rome Statute was not exclusively voiced by the United States. In fact, other Great Powers, as Bekou and Cryer (2007: 54–55) argue, were quite content with letting the U.S. provide the public face of opposition to the ICC. Russia's involvement in Chechnya and India's dispute with Pakistan over Kashmir would have converged with Chinese opposition had these powers had any real fear that ICC universal jurisdiction was a possibility. With three of five permanent members of the SC in strong opposition, the adoption of the Rome Statute seems to be an oddity.

Lietzau (2001: 128) offers an explanation: The framers of the ICC, he argues, were much more focused on establishing an independent court with as much authority as possible while attracting the support of as many states as possible. Goldsmith (2003: 100) goes on to say that the short-term obsession with creating an ambitious court without special exemption for Great Power States completely failed to consider the far more important long-term and indispensable goal of preventing human rights abuses by not addressing the future need of the court to have Great Power support.

Bruce Broomhall (2001: 149–150) suggests a different approach. He argues that although the U.S. voiced strong opposition, European and other powers believed that once crimes against humanity were committed, the U.S. would eventually still support the notion of accountability—even if the only institution to achieve this was the ICC. He goes on to say that the U.S. had a political interest in not ceding the platform of accountability to its allies, which would turn public opinion, domestically and abroad, against the U.S., and that proponents of the ICC therefore had little incentive to weaken the court through concessions.

This notion of idealpolitik—the desire to create the best possible court to curb human rights abuses—is altogether dismissed by Jonathan Greenberg (2003). "Power always trumps law," he argues. Treaties and international institutions have little or no authority and reflect nothing but the distribution of power among sovereign states, which determine how they are created, to which extent they are implemented, and when they cease to be in effect. Treaties are formed, he claims, solely for the purpose of sovereign states to exercise their power and to further their political and economic interests (Greenberg, 2003: 1795–96). "Law is the weapon of the stronger," Rudolph (2001: 683) interjects. It is not a fixed ethical standard, but rather a flexible one that reflects the policy and interests of the dominant group of states.

The reason then for why the Rome Statute was adopted despite strong Great Power opposition is, according to Goldsmith (2003: 100), to be found in the realpolitik of especially middle European powers. He argues that European states were less interested in curbing human rights violations and more interested in establishing an ICC that limited the militarily powerful nations and thus maximized their relative power. The unprecedented effort to limit the power of the Security Council supports this argument, he contends, and so does the compromise over universal jurisdiction. The fact that the ICC has jurisdiction over non-signatories acting across national borders in countries that are parties to the ICC affects militarily strong countries, as they are the ones most likely to engage in such operations. That the ICC fails to hold jurisdiction over actors operating within their own territorial confines mattered less, as those states tend to be less significant in terms of global security policy (Goldsmith, 2003: 101).

Conclusion: Realpolitik Triumphs Over Idealism

It seems evident that in the half century prior to the adoption of the Rome Statute, there have been widespread international calls for a permanent criminal court to replace ad hoc justice in response to crimes against humanity. The proliferation of ethnic cleansings and the most horrendous brutality imaginable provided the grim, disheartening catalyst for international consensus. It seems likewise evident that this process was hijacked by conflicting national interests that fundamentally changed the admirable objective of the ICC by forcing it down a divergent path.