American Outlook Today
May 14, 2002
By Alan W. Dowd

The United States has cut its ties to the International Criminal Court (ICC)—and not a moment too soon. The formal announcement of Washington’s decision was just three sentences long, but what it said and the way it was conveyed spoke volumes: "The United States does not intend to become party to the treaty," explained a terse letter from the State Department to UN secretary general Kofi Anan. "Accordingly, the United States has no legal obligations arising from its signature." Delivered not by the president or secretary of state but by an obscure undersecretary, the Bush administration’s decision to disengage from the Court puts the world on notice that America will not be constrained in pursuit of its interests. Simply put, America is a great power and is willing to act the part.

The usual chorus of protests and condemnations has already begun. Some are condemning Washington for "breaking faith with victims of human-rights violations." Others warn of isolation and diminished influence over word affairs. Of course, neither charge stands up to scrutiny. No country has done more to promote human rights than the United States—from the Nuremberg trials to the UN Declaration on Human Rights to the Helsinki Accords to the creation of a permanent UN human-rights commissioner.

And when it comes to influence, the Court’s advocates forget that they need the United States more than the United States needs them. According to Undersecretary of State Marc Grossman, the United States has worked since 1998 to improve the ICC, but U.S. proposals were repeatedly rebuffed during that time. Washington has rightly concluded that the Court’s framers and supporters would rather imitate Woodrow Wilson in their stubbornness than compromise over some very legitimate concerns.

Take, for example, the Court’s vague definitions of war crimes and crimes against humanity. According to the Rome Treaty, which created the Court, war crimes include "extensive destruction and appropriation of property;" depriving "a prisoner of war . . . of the rights of fair and regular trial;" launching an attack "in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects;" and employing weapons which are intended to cause "superfluous or unnecessary suffering"

Under the treaty’s expansive and hazy definitions, "inflicting pain or suffering . . . upon a person in custody" as "part of a widespread or systematic attack directed against any civilian population" is considered a crime against humanity. Likewise, depriving an identifiable group of "fundamental rights" could be considered a crime against humanity, as could "causing great suffering or serious injury to body or to mental or physical health"

Then there is the matter of double jeopardy. According to the Rome Treaty, the Court will not try anyone who has been tried by another court for conduct proscribed by the treaty.

However, if it is determined that the first trial was held to shield the accused from standing trial in the ICC, or that the first trial was "not conducted independently or impartially," then the ICC will seek to indict and try the accused a second time. As Ruth Wedgewood, a professor of international law at Yale and Johns Hopkins, observed in the Wall Street Journal, "the United States is hardly likely to prosecute its own pilots for faithfully carrying out the air attacks assigned to them." And even if we did, the ICC could conclude that the proceedings were a farce.

How difficult would it be for a motivated prosecutor to convince a panel awash in moral relativism that U.S. pilots conducted a campaign to destroy Iraqi property in 1991; that U.S. Rangers mounted raids into Mogadishu knowing that civilians would be killed in 1993; that U.S. war planners targeted Serbian population centers in 1999, causing "extensive destruction of property;" that U.S. jets dropped munitions that caused "unnecessary suffering" in Iraq in the 1990s or Afghanistan in 2001; that the detainees in Guantanamo Bay have been deprived of their "fundamental rights;" or that the Pentagon held a trial just to protect itself?

The answer is not difficult at all, especially at the United Nations or the Hague. Consider the reaction to America’s anti-terror campaign. Dutch officials have blasted Washington for failing to "uphold our norms and values." Coming from the same government whose troops stood by, Pilate-like, as the Serbs rampaged through Srebrenica, their criticism is as hallow as their credibility. Saudi diplomats have expressed concern over how the Pentagon is treating the detainees in Cuba. (This is the same government that lops off arms and legs for stealing.) Human-rights authorities in Paris have called the detainee camp a "parody of justice."

These are the very governments and people who will staff the ICC and ultimately stand in judgment of our troops, generals, defense secretaries and presidents.

Given its role as guarantor of stability in Europe, Korea, the Pacific, the Persian Gulf, and now Central Asia—a role that expands daily in the War on Terror—the United States has plenty to risk and little to gain in a supranational court of law. As Defense Secretary Donald Rumsfeld put it, an unchecked ICC could create "a powerful disincentive for U.S. military engagement in the world." With American troops deployed in more than one hundred countries and a long war just underway, this is no time to hamstring U.S. military commanders with worries of irreversible indictments.

The Court’s aims are noble. Genocide and other war crimes have deformed mankind and altered the earth’s very ethnic composition. But the ICC will not deter future war criminals any more than Nuremberg deterred Stalin, Mao, Pol Pot, Mengistu, Amin, Saddam, or Milosevic. What it will do is constrain the United States and other power-projecting nations from defending their interests, restoring order and intervening to help when others can’t or won’t—as America did in Korea, Kuwait, Somalia, Bosnia, and Kosovo.

It has been said that America is great because America is good. The world needs America to be both, especially now. In its current form, the International Criminal Court makes that impossible.