In the summer of 1998, representatives from 160 countries and a host of non-governmental organizations converged in Rome to draft a mandate for the establishment of the world's first global court for the prosecution of war crimes, genocide, and crimes against humanity. One month later, the Rome Statute emerged, creating the International Criminal Court (ICC). The theoretical foundation of the Rome Statute was the principle of jus cogens, the idea that peremptory moral norms bind all human beings regardless of national identity. Immediately hailed as a breakthrough in the development of an international legal order, the Rome Statute had been signed by 139 countries by the Spring of 2003 and was poised to begin hearing cases sometime next year.

Yet the future of the ICC is currently in jeopardy due to a global campaign of opposition by the United States. Even before the drafting of the Rome Statute, the United States argued that the establishment of a permanent court with international jurisdiction conflicts with the principle of national sovereignty, which grants each state absolute power of jurisdiction within its territory. In December 2001, the US Congress passed the American Service Members' Protection Act (ASPA), which banned the United States from cooperating with the ICC and established a presidential prerogative to use "all means necessary" in preventing the prosecution of US citizens by the ICC. Since then, the administration of US President George W. Bush has tirelessly worked to ensure absolute immunity from the court, signing deals with at 18 countries to forbid ICC extradition of US nationals. Other ICC signatory states report that the United States has threatened them with a withdrawal of military and economic aid if they do not sign similar agreements.

If the United States succeeds in preventing the ICC's establishment, it will have undermined the first permanent system of accountability for the world's most heinous dictators, megalomaniacs, and mass murderers. If the United States is unsuccessful in obstructing the ICC, it will have undermined its own global soft power by entrenching widespread perceptions of US exceptionalism. But regardless of what happens, one thing is certain: the Bush administration's stance against the court is inconsistent. It goes against the basic tenants of international legal theory and is fundamentally out of line with the United States' historic support for the establishment of international law.

Ad Hoc Justice

The founding principle of the ICC, jus cogens, dates back to well before the United States. It emerged during the 15th century to rein in not maniacal dictators, but pirates. Piracy, not genocide, was the first crime interpreted as flouting the fundamental values of the civilized world. States therefore claimed the authority to exercise universal jurisdiction in pursuing and punishing pirates regardless of the territory or territories where a pirate may have committed his crime.

The first application of jus cogens to state officials occurred in response to the horrors of World War II. The victorious Allies set up an ad hoc court in Nuremburg, Germany to try high-ranking Nazi officials accused of war crimes and genocide. Unlike previous war crime tribunals, the Nuremburg trials did not base their prosecutions on Germany's breaching of treaty agreements but instead convicted Nazi officials under the grounds of jus cogens that their crimes were so heinous that they threatened the very fabric of human morality and international respect for the rule of law.

The Nuremburg trials signaled a shift away from the positivist model for international relations in which states— and therefore agents of the state—were subject only to their own laws and treaty obligations. What replaced this model was a new cosmopolitan framework in which individuals had obligations to their fellow human beings that superseded state law. The international community accepted a moral imperative to punish and deter war crimes, genocide, and crimes against humanity, even when said crimes were committed by agents of a sovereign state. Interestingly enough, the United States was one of the leaders in the development of this new balance between international law and state sovereignty. At the time, the United States was more than willing to acknowledge what it refuses to accept today—that international law can only be protected if applied universally. Justice Robert Jackson, the US chief prosecutor at the Nuremburg trials affirmed the universality of the legal principle: "While the law is first applied against German aggressors … if it is to serve any useful purpose it must condemn aggression by any other nations, including those who sit here now in judgment."

Unfortunately, for the next forty years the concept of universal legal norms were undermined by the ideological divisions of the Cold War. It was not until the collapse of the Soviet Union in 1989, which precipitated an explosion of previously suppressed ethnic tensions, that the issue of international criminal accountability once again became relevant. Like the Nazi Holocaust before them, the ethnic genocides of the early nineties highlighted anew the need for super-national legal enforcement when national legal systems are either unwilling (in the case of Yugoslavia) or unable (as in the case of Rwanda) to try the perpetrators of atrocities.

More recently, the United States has taken a particularly active role in the formation of an Iraqi-led Special Tribunal to prosecute the human rights abuses perpetrated under Saddam Hussein. The court, which named its head judge and lead prosecutor in April, will try prominent Baath party members, including Hussein himself, on charges of crimes against humanity committed during chemical attacks on Kurdish villages, the invasion of Kuwait, and the suppression of Shiite Muslim uprisings. In the case of the Iraqi tribunal, US support has gone above any beyond that of any other country. Even as European countries have questioned the legitimacy of the court in light of its insistence on using the death penalty and the relative inexperience of its judges and prosecutors in issues of international law, the United States has unequivocally supported the court on the grounds that the norms of international justice must be enforced even when legal conditions are imperfect.

Despite US support, the protestations of European and Middle-eastern countries against the perceived illegitimacy of the Iraqi Tribunal has underscored a number of inherent flaws in the system of ad hoc justice. Insofar as tribunals almost always come in the wake of a war of some kind, it is often unavoidable that they should be run, or at least initiated, by the victors in the war. The perception that special tribunals are "victor's justice" rather than objective courts has plagued every ad hoc tribunal since Nuremburg. The Iraqi Tribunal in particular has been accused of being a tool of the US-led coalition, with many countries in the Middle East publicly denouncing the trial of Saddam Hussein before it has even taken place.