2003 12 01
[The ICC]

Jackson Diehl writes of the International Criminal Court:

Though it lacks foolproof safeguards, the risk that it would prosecute a U.S. citizen is pretty small: It is designed to punish war criminals in failed states, not citizens of countries with their own functioning justice systems.

Is that true?

It seems to me that U.S. resistance to the court is based on two concerns: a) The concern that frivilous lawsuits would harrass U.S. policymakers long after they had left office. Enough of these lawsuits might eventually have an influence on the formulation of policy. b) The concern that lawsuits with genuine merit would harrass U.S. policymakers long after they had left office. And enough of these lawsuits might eventually have an influence on the formulation of policy.

As for a), I don’t know enough about the design of the ICC to say. But the temptation for abuse is surely going to be very strong. What’s more – and perhaps just as important – is that a case doesn’t need to be successful in order to generate a huge amount of negative publicity for its intended target. In other words, the ICC could end up being a useful political tool even if all the safeguards actually work. This may be one reason that so many people in the Bush admin think the thing is rotten all the way through.

As for b), I think it speaks volumes about U.S. political culture that a functioning justice system is casually assumed to be sufficient to punish war criminals. As long as Henry Kissinger is a free man I will be doubtful about the U.S.’s ability to apply even the standards of domestic law to its top policymakers, let alone international law. The fact is that the man broke domestic and international law and nothing was ever, or will ever, be done about it. (The problem runs very deep here. It’s not just that Kissinger has escaped prosection. It’s that he’s regularly invited onto television to give his opinion about international matters. It’s a cultural problem, as well as a legal one.)

(Just to be clear, I think that most countries in the world find it extremely hard to deal with criminal behaviour among their own policymaking elite. It’s not as if the U.S. is alone in this, even if it finds itself rather isolated on the question of the ICC itself.)

Now, this example is not directly relevant to the ICC, since the ICC doesn’t consider cases based on events prior to its inception. Still, it isn’t just failed states who have trouble dealing effectively and lawfully with criminals who are policymakers, and basing an argument for the ICC on that assumption is no way to win the argument.

On the left we often talk as if the Bush admin’s resistance to the ICC is simply willful stubbornness. But I think that officials who resist the ICC know exactly what they’re doing. The resistance makes perfect sense if you take the ambitions and the likely effects of the ICC seriously.

UPDATE: A friendly reader complains that I’m not clear enough about “the ambitions and likely effects of the ICC”. I just meant the ambition to actually punish people for actually committing crimes against international law, regardless of nationality. That’s pretty ambitious. If they were even partway successful at this, the likely effect would be a serious strenthening of the relevant international norms.

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