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US exceptionalism may have a place in international politics, but this concept has run its course in the sphere of international criminal justice. No nation should ignore its duty to bring war criminals to justice or otherwise shield its own leaders or soldiers from charges of genocide, crimes against humanity, or war crimes. The rule of law debacles in Iraq, Afghanistan, and Guantanamo have been the death-knell of exceptionalism in the war crimes business. Reality is knocking and its name is the permanent International Criminal Court (ICC). Any claim that the US may have to moral high ground in foreign policy necessarily requires that the United States join the ICC and do so relatively soon. The United States needs the ICC to help restore its global credibility, discipline its own decision-making, and strengthen judicial intervention against atrocity crimes.
Reject and Punish
In recent years, the United States has lost not only its leadership in the field of international law but has also crippled its own national interests and foreign policy objectives. The descent into a yawning credibility gap can be traced back to 2001, even before 9/11, and the Bush administration’s rejection of the ICC, the Kyoto Protocol, and multilateralism writ large. These decisions were based on a mindset deeply skeptical and dismissive of international law.
One of President Bill Clinton’s final acts in office was to authorize one of the authors, David Scheffer—who led the US delegation to the UN talks on the ICC— to sign the Rome Statute of the ICC on behalf of the United States on December 31, 2000. That act was the product of years of intensive engagement to achieve Clinton’s goal of establishing the ICC by the end of the twentieth century. While US negotiators had contributed significantly to the content of the Rome Statute and its supplemental documents, they also had concerns about some of the provisions. Addressing those concerns delayed US signature until the last possible day. Some key issues remained to be addressed, but Clinton understood that it was in the best interest of the United States to stay engaged in the negotiations as a signatory state, unintimidated by the process. He also knew that submitting the Rome Statute to the US Senate for ratification was unrealistic during the remaining 20 days of his presidency and that years would probably elapse before Senate approval could be sought.
In May 2002, John Bolton, Under Secretary for Arms Control and International Security in the State Department, sent a letter to the United Nations purporting to “unsign” the Rome Statute and thereby remove the legal significance of the US signature. The Bolton letter essentially launched an all-out assault on the ICC through such punitive measures as the American Service Members Protection Act of 2002 (ASPA). In the years that followed, US officials directed a barrage of hostile rhetoric and punitive strategy against the ICC and those nations joining it. The State and Defense Departments threatened to rescind military assistance and economic support to foreign governments that did not sign bilateral agreements with the United States forbidding surrender of nationals to the ICC. These agreements actually go beyond what is permitted by the Rome Statute as treaties that would bind ICC judges to their decisions.
The Bush administration’s punitive measures exacerbated the self-defeating results of exceptionalism. Washington’s hostility towards the ICC did not prevent other nations from ratifying the Rome Statute and forced many to hold their noses as they were pressured to sign the flawed non-surrender agreements with Washington. Friends and allies of the United States opted for an active role for the ICC in confronting atrocity crimes rather than buying into Washington’s exaggerated fears about the Court. At present 104 nations are states parties to the Rome Statute; all of America’s major allies save Israel, Turkey, and Chile have joined the ICC.
The upper house of Japan’s Diet approved accession to the ICC in April and formal entry is expected by October of this year. Israel has rejoined critical talks on the crime of aggression as an active observer state. States parties include Canada, Mexico, all of the EU nations, and the majority of African and Latin American-Caribbean countries. The Asia-Pacific region lags behind in terms of member states, but the Republic of Korea, Australia, New Zealand, Jordan, Cambodia, Afghanistan, Tajikistan, and the Marshall Islands are among 12 nations from the region that have joined the ICC. In large measure, the United States is now isolated in its opposition to the ICC and its influence on international justice is declining rapidly.
An Active Court
Meanwhile, the ICC launched its operations in July 2002 and never looked back. During negotiations leading to its establishment, US negotiators always maintained that the United States would want to see a track record of demonstrated competence and professionalism before moving towards ratification. Over a five-year period, the ICC has not failed on this count. Despite some tardiness in the start-up efforts and occasional missteps in tactics, the work of Prosecutor Luis Moreno Ocampo (Argentina), Registrar Bruno Cathala (France), and the 18 judges led by President Philippe Kirsch (Canada) and their skilled staffs has been exemplary.
The ICC has dealt with four instances of atrocity crimes: the Democratic Republic of the Congo, Uganda, the Central African Republic (CAR)—each referred by the national government itself to the Court—and Darfur, which the UN Security Council referred to the ICC under UN Charter Chapter VII enforcement authority (with a US abstention). One Congolese defendant charged with recruiting child soldiers now awaits trial in The Hague. Warrants of arrest have been issued against four surviving leaders of the Lord’s Resistance Army in Uganda and two Sudanese leaders for crimes allegedly committed in Darfur. Ocampo opened investigations into mass rape in the CAR in May.
The work, though, has been difficult. ICC investigators are effectively denied access to Darfur because the security risks are too high while Khartoum fiddles. The persistent alleged dichotomy of “peace vs. justice” challenges Ocampo in turbulent Uganda, which he has so far handled diplomatically and effectively. The security risks and logistical challenges of the eastern regions of the Democratic Republic of the Congo have made investigative work there among the most difficult tasks ever confronted by a prosecutor.
