Even those tribunals that have had extraordinary success in bringing some of the world's worst criminals to justice have been sharply criticized, and while the "victor's justice" argument is primarily a political objection to the courts, a number of concerns have been raised on legal grounds. A number of international legal experts have pointed out that the differences in procedural and sentencing methodologies between different ad hoc courts undermines legal consistency in enforcing international law. Even more importantly, ad hoc tribunals do nothing to deter the perpetration of genocidal acts in the first place because they are created only after genocide has occurred. Not coincidentally, these have been some of the most powerful arguments in favor setting up a permanent international criminal court.

Universal Jurisdiction

Largely in response to the perceived failure of ad hoc tribunals, during the late 1990s a number of countries began making use of a principle that had not been summoned since the days of piracy: universal jurisdiction. As under the universal jurisdiction of yore, the new activist states claimed a right to prosecute a criminal in their national courts based solely on the nature of the crime, regardless of where the crime was committed, the nationality of the accused, or the nationality of the victim. US court decisions and legislative practices have long sanctioned the principle of universal jurisdiction. Even during the Nuremburg trials, the US-led tribunal pointed out that "[the Allied powers] have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law."

However, universal jurisdiction, like the ad hoc tribunals before it, has been the subject of much criticism among international lawyers. There is a significant difference, the lawyers argue, between the international community claiming a right to enforce human rights law under the principle of jus cogens, and a single nation-state claiming the prerogative to unilaterally enforce international law at its own discretion. From legal theory perspective, universal jurisdiction is the equivalent of granting states the authority to act as self-appointed global policemen with no external checks. Even when courts and legislative bodies have moved in support of universal jurisdiction, there has been a conspicuous lack of theoretical justification for its use. In 1998, for example, the British House of Lords voted to grant Spanish courts extradition power over former Chilean dictator Augusto Pinochet from Britain under universal jurisdiction. The move was predicated on the judgment that Pinochet's status as a former head of state did not confer upon him immunity from international law. It gave no theoretical justification, however, for Spain's claim of jurisdiction in the case. Indeed, in 2002 the International Court of Justice (ICJ) effectively reversed the precedent from the Pinochet case by ruling that Belgium had violated the national sovereignty of the Congo when it issued an arrest warrant for an official.

An Inexplicable Contradiction

So if the United States supports ad hoc tribunals and universal jurisdiction, both of which could conceivably be used against its nationals but both of which lack the practical efficacy and theoretical legitimacy that a permanent court could provide, the question remains: Why does the United States so vehemently oppose the ICC? Clearly, if the United States wanted to remain consistent with its previous positions on matters of international law and with the trends in international legal theory that it has supported and in some cases spearheaded, it would embrace the ICC. In light of this apparent hypocrisy, apologists for the administration of US President George W. Bush have raised two ostensible objections to the ICC.

First, they have claimed that the ICC will be ineffective at preventing most perpetrations of war crimes, genocide, and crimes against humanity because Article 12 of the Rome Statute limits the courts jurisdiction to crimes committed either by a citizen or in the territory of a signatory state. This is a valid objection. According to an authoritative study of genocide and state-sponsored killing at the University of Hawaii, more than 170 million people were murdered by their own governments during the 20th century. Thus, so long as such oppressive regimes remained non-signatories to the court—a very likely possibility—the ICC would have no authority to prosecute their leaders. But this critical limitation, which does indeed threaten to undermine the effectiveness of the court, came into existence in the first place as part of an effort to appease US concerns over sovereignty protection during the Rome Conference. In fact, a number of countries at the conference originally called for more expansive juridical power that would have included crimes where the victim's state was an ICC member or where a custodial state of the accused (that is, a state that the accused was visiting) was a member. Thus the power to undo this flaw rests with the United States.

The other major objection the of the United States, as reflected in the passage of the American Servicemembers' Protection Act of 2002, is that the global US military presence would put US service members at an unduly high risk of ICC prosecution. This objection, however, holds little water. The ICC is founded on the legal principle of complementarity, meaning it will only exercise jurisdiction when the relevant national courts have shown themselves to be unwilling or unable to take action. Under Article 17 of the Rome Statue, all the United States would have to do to preclude ICC jurisdiction over one of its service members is inform the court of its willingness to investigate whatever accusations have been made against the individual. Since the ICC only has jurisdiction over the most heinous of international crimes to begin with, it seems highly unlikely that the United States, with arguably the most advanced legal system in the world, would be unable to investigate a service member accused of war crimes, genocide, or crimes against humanity. The possibility that the United States might be unwilling to undertake such an investigation is simply repugnant and would contradict the long-standing commitment of the United States to protecting human rights and acting in accordance with the just war theory.