Published online by Cambridge University Press: 25 March 2011
The critics of the ICC in the Bush administration and its supporters within the human rights community have one thing in common: they assume that the ICC can evolve into a powerful institution independent of states, either to constrain American power or to act on a duty to prosecute to end impunity for perpetrators. Both overestimate the ability of the court to pursue a legalism divorced from power realities. The former attribute to the court powers it is unlikely to exercise, particularly if the United States remains outside the treaty. This is due, in part, to the safeguards within the Rome Statute, but more importantly, to the court's dependence on sovereign cooperation, which will lead it to place a high premium on cultivating the good will of the most powerful states. The latter overestimate the degree to which courts by themselves can deter atrocities. The ICC's effectiveness in any particular case will therefore be dependent on the political consensus of those actors capable of wielding power in that area. They also underestimate the need to compromise justice – at least, prosecutorial justice – in cases in which bargaining and compromise are the central means of facilitating transitions from armed conflict or dictatorship, and in cases in which the strength of the perpetrators and the limits of one's power would make legal proceedings either futile or counterproductive to other interests and values. Hence, decisions to prosecute must first be subjected to a test of political prudence, and then take place according to due process and the rule of law.
1 Barbara Crossette, “War Crimes Tribunal Becomes Reality, Without U.S. Role,” New York Times, April 12, 2002, p. A3.
2 Frederick L. Kirgis, “Security Council Resolution 1502 on the Protection of Humanitarian and United Nations Personnel,” ASIL Insights, September 2003; available at http://www.asil.org/insights/insigh115.htm.
4 Antonio Cassese, International Criminal Law (New York: Oxford University Press, 2003), p. 37. There were limited exceptions to this, such as piracy and the international slave trade.
5 Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 2nd ed. (New York: Oxford University Press, 2002), pp. 4–5.
6 See Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace, rev. by Kenneth W. Thompson, 6th ed. (New York: Knopf, 1985), pp. 294–95.
7 Joseph S. Nye, Jr., Understanding International Conflict: An Introduction to Theory and History (New York: HarperCollins, 1993), p. 22.
9 Ratner and Abrams, Accountability for Human Rights Atrocities, pp. 50–52.
10 Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (New York: New Press, 2000), p. 220.
11 Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Ardsley: Transnational Publishers, 2002), pp. 31–39.
12 Leo Kuper, Genocide: Its Political Use in the Twentieth Century (New Haven: Yale University Press, 1981), ch. 9.
13 Ratner and Abrams, Accountability for Human Rights Atrocities, pp. 190–206.
15 See Robertson, Crimes against Humanity, pp. 368–75.
16 Glenn Frankel, “Belgian War Crimes Legislation Undone by Its Global Reach,” Washington Post, September 30, 2003, p. A1.
17 See Bartram Brown, “The Statute of the ICC: Past, Present, Future,” in Sarah B. Sewall and Carl Kaysen, eds., The United States and the International Criminal Court: National Security and International Law (Boulder, Colo.: Rowman & Littlefield, 2000), pp. 67–68.
18 William Schabas, An Introduction to the International Criminal Court, 2nd ed. (New York: Cambridge University Press, 2004), pp. 119–20.
19 See Lawrence Wechsler, “Exceptional Cases in Rome: The United States and the Struggle for an ICC,” in Sewall and Kaysen, eds., The United States and the International Criminal Court, esp. pp. 92–93 and 104–109.
20 Sadat, The International Criminal Court, p. 104.
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24 See Scheffer, David, “The United States and the International Criminal Court,” American Journal of International Law 93,no. 1 (1999),p.18CrossRefGoogle Scholar; and John Bolton, “Speech Two: Reject and Oppose the International Criminal Court,” in Alton Frye, ed., Toward an International Criminal Court? (New York: Council on Foreign Relations, 1999), p. 43.
25 Broomhall, International Justice and the International Criminal Court, pp. 86–93. This distinction applies only to the admissibility of a situation, not individual indictments. Article 19 creates identical rules for the accused to challenge the latter regardless of the trigger.
26 Steven Lee Myers, “US Signs Treaty for World Court to Try Atrocities,” New York Times, January 1, 2001, p. A1.
27 Human Rights Watch, “Bilateral Immunity Agreements,” Background Briefing, June 20, 2003; available at http://www.hrw.org/campaigns/icc/docs/bilateralagreements.pdf.
28 Frederic L. Kirgis, “U.S. Drops Plans to Exempt GIs from UN Court,” ASIL Insights, July 2004; available at http://www.asil.org/insights/insigh139.htm.
29 Colum Lynch, “Congress Set to Curb International Court,” Washington Post, November 26, 2004, p. A2.
30 See John Bolton, “The United States and the International Criminal Court,” Remarks to the Aspen Institute, Berlin, Germany, September 16, 2002; available at http://www.state.gov/t/us/rm/13538.htm.
32 See David Davenport, “Blair's International Court Backfires,” Scripps Howard News Service, June 3, 2003.
33 Michael Ratner, President, Center for Constitutional Rights, quoted in Steven Edwards, “Try U.S., Britain for Bombings in Iraq, War Crimes Court Urged,” Ottawa Citizen, January 27, 2004, p. A9.
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36 Richard Norton-Taylor, “Charges Cast Doubt on Army's Good Name,” Guardian, July 20, 2005, p. 6.
39 Antonio Cassese quoted in Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press, 2000), p. 243.
40 Jackson Nyamuya Maogoto, War Crimes and Realpolitik: International Justice from World War I to the 21st Century (Boulder, Colo.: Lynne Rienner Publishers, 2004), pp. 213–14.
41 See the comments of Michael Mansfield QC in “War Crimes Trial Sought for Blair, Three Others over Iraq,” Agence France Presse, March 2, 2004. On the Goldsmith memo and its impact, see Glenn Frankel, “Blair Releases Memo Questioning Legality of Iraq War,” Washington Post, April 29, 2005, p. A16; and Richard Norton-Taylor, “International Court Hears Anti-War Claims,” Guardian, May 6, 2005, p. 6.
42 Zagaris, Bruce, “Uganda Refers First Case to ICC and Prosecutor Declares Congo as First Situs on Investigation,” International Enforcement Law Reporter 20,no. 4 (2004).Google Scholar
43 “Report of the Inquiry into the Alleged Commission of War Crimes by Coalition Forces in the Iraq War During 2003,” Peacerights, January 20, 2004; available at http://www.peacerights.org/reports.php. By contrast, Human Rights Watch, while critical of the use of cluster bombs, did not accuse the United States or the U.K. of war crimes. See Human Rights Watch, “Background on International Humanitarian Law, War Crimes and the War in Iraq,” December 12, 2003, available at http://www.hrw.org/press/2003/12/ihl-qna.htm; and Tom Carter, “Cluster Bombs Called ‘War Crime,’” Washington Times, January 24, 2004, p. A7.
44 Sanjay Suri, “ICC to Get Evidence of War Crimes,” Inter Press Service, January 20, 2004.
45 Norton-Taylor, “International Court Hears Anti-War Claims,” p. 2.
46 James Traub, “The Worst Place in the World,” New York Review of Books, July 29, 2000, pp. 64–65.
47 See Harris, Robin, “Blair's ‘Ethical’ Policy,” National Interest 63 (2001), pp.25–36Google Scholar. See also “The U.N.'s Frontier Force,” Economist, November 4, 2000, p. 50.
48 See Paul R. Williams and Michael P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (Boulder, Colo.: Rowman & Littlefield, 2002), pp. 206–207; and Marlise Simons and Carlotta Gall, “The Handover of Milosevic,” New York Times, June 29, 2001, p. A1.
49 See Ratner, “The International Criminal Court and the Limits of Global Judicialization,” pp. 451–52.
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52 Unless a sovereign Iraqi government, as a nonparty, invokes Article 12(3), asking the court to assert ad hoc jurisdiction over crimes on its territory that the United States has not fully investigated. However, given the dependence of Iraq's government on the United States for security and economic reconstruction, such a request is highly improbable.
54 Joseph S. Nye, Jr., Soft Power: The Means to Success in World Politics (New York: PublicAffairs, 2004). For recent reports on some of those costs, see Juan Forero, “Bush's Aid Cuts on Court Issue Roil Neighbors,” New York Times, August 19, 2005, p. A1, and Spencer Ackerman, “Island Mentality: Why the Bush Administration Defends Guantanamo,” New Republic, August 22, 2005, p. 18.
55 See Judith Skhlar, Legalism: Law, Morals, and Political Trials (Cambridge: Harvard University Press, 1986), p. 1.
56 See Bass, Stay the Hand of Vengeance, pp. 20–28.
57 Shklar, Legalism, p. 111.
60 For a parallel critique of the ICC from a human rights lawyer, see Robertson, Crimes against Humanity, pp. 324–67.
61 See Cassel, Douglas, “Universal Criminal Jurisdiction,” Human Rights: The Journal of Individual Rights and Responsibilities 31,no. 1 (2004), pp.22–23Google Scholar. In practice, these laws vary considerably in terms of when courts can assert jurisdiction. See Kamminga, Menno, “Lessons Learned from the Exercise of Universal Jurisdiction in Respect to Gross Human Rights Offenses,” Human Rights Quarterly 23,no. 4 (2001), pp.941–54.CrossRefGoogle Scholar
64 Proponents of this argument often cite a statement attributed to Hitler that the failure to prosecute Turkish officials responsible for the Armenian genocide encouraged him to believe that there would be no consequences for the persecution and later extermination of the Jews. See Williams and Scharf, Peace with Justice? p. 32. But would the prosecution of officials from a defeated power have deterred Hitler, who expected to win the war? Even when the allies declared their intent to put Nazi leaders on trial, German atrocities continued. See Kamminga, “Lessons Learned from the Exercise of Universal Jurisdiction,” p. 943.
65 See Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000), pp. 208–57.
66 See David Rieff, “Court of Dreams,” New Republic, September 7, 1998, p. 17.
67 This was the conclusion of Report of the International Commission of Inquiry to the United Nations Secretary General, January 25, 2005. On Resolution 1593, which referred the Darfur case to the ICC, see Bruce Zagaris, “UN Security Council Makes 1st Referral to ICC in Darfur Case,” International Enforcement Law Reporter 21, no. 6 (2005).
68 Human Rights Watch, “UN: Pass Resolution to Refer Darfur to ICC,” Human Rights News, March 25, 2005; available at hrw.org/english/docs/2005/03/25/sudan10371.htm.
69 Peter S. Goodman, “China Invests Heavily in Sudan's Oil Industry,” Washington Post, December 23, 2004, p. A1.
71 Richard J. Goldstone, “Bringing War Criminals to Justice in an Ongoing War,” in Jonathan Moore, ed., Hard Choices: Moral Dilemmas in Humanitarian Intervention (Boulder, Colo.: Rowman & Littlefield, 1998), pp. 199–208.
72 Snyder, Jack andVinjamuri, Leslie, “Trials and Errors: Principle and Pragmatism in Strategies of International Justice,” International Security 28,no. 3 (2003), pp.18–20.Google Scholar
73 Richard J. Goldstone, For Humanity: Reflections of a War Crimes Investigator (New Haven: Yale University Press, 2000), pp. 59–73.
74 Nigel Biggar, Burying the Past: Making Peace and Doing Justice after Civil Conflict (Washington, D.C.: Georgetown University Press, 2001), pp. 15–16.
75 See Neil J. Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes, vol. 2 (Washington, D.C.: United States Institute of Peace, 1995), pp. 297–321.
76 Peter A. Barcroft, “The Slow Demise of Impunity in Argentina and Chile,” ASIL Insights, January 2005; available at http://www.asil.org/insights/2005/01/insight050107.htm.
79 Robertson, Crimes against Humanity, p. 203.
80 Roth, “Sidelined on Human Rights,” p. 5.
81 Conversation with the Author, University of Geneva Law School, August 2, 2001.
82 Bass, Stay the Hand of Vengeance, pp. 227–31.
83 Ibid., p. 228.
84 Ibid., pp. 236–37.
85 Williams and Scharf, Peace with Justice? p. 131.
86 Bass, Stay the Hand of Vengeance, p. 245.
87 Robertson, Crimes against Humanity, p. 418.
88 Human Rights Watch, “Taylor Indictment Advances Justice,” Human Rights News, June 4, 2003; available at http://www.hrw.org/press/2003/06/westafrica060403.htm.
89 See Williams and Scharf, Peace with Justice? pp. 206–208.
90 Jesse Bravin, “A Prosecutor Vows No Deal with Thugs in Sierra Leone War,” Wall Street Journal, July 28, 2003, p. A1.
91 For contrasting views of the severity of Russian war crimes, see Matthew Evangelista, The Chechen Wars: Will Russia Go the Way of the Soviet Union? (Washington, D.C.: Brookings Institution Press, 2002), pp. 139–72; and Anatol Lieven, “Chechnya and the Laws of War,” in Dmitri V. Trenin, Aleksei V. Malashenko, and Anatol Lieven, eds., Russia's Restless Frontier: The Chechnya Factor in Post-Soviet Russia (Washington, D.C.: Carnegie Endowment for International Peace, 2004), pp. 209–24.
92 Rachel Denber, “‘Glad to Be Deceived’: The International Community and Chechnya,” Human Rights Watch World Report 2004; available at http://www.hrw.org/wr2k4/7.htm. The report characterizes some Russian military actions as war crimes, but advocates the use of economic and diplomatic pressure, not prosecution.
93 See Glenn Kessler, “North Korea Seeks to Exclude U.S. Official from Talks,” Washington Post, August 4, 2003, p. A10; and Peter Slevin, “Arms Control Hard-Liner Won't Attend Sessions on North Korea,” Washington Post, August 13, 2003, p. A20.
94 See Amnesty International, “Belgian Court Has Jurisdiction in Sharon Case to Investigate 1982 Sabra and Chatila Killings,” May 1, 2001; available at web.amnesty.org/library/Index/ENGIOR530012002?open&of=ENG-2D2. In contrast, Wedgwood, Ruth,in “Justice and Sovereignty: Implications of the International Criminal Court,” UCLA Journal of International Law and Foreign Affairs 8,no. 1 (2003),p.54Google Scholar, suggests that Sharon's responsibility is political rather than criminal.
95 See David A. Bell, “Leopold's Ghost,” New Republic, September 10, 2001, p. 16.
96 See Anthony Dworkin, “The Killing of Sheikh Yassin: Murder or Lawful Act of War?” Crimes of War Project, March 30, 2004; available at http://www.crimesofwar.org/onnews/news-yassin.html.
97 Contrast Human Rights Watch, “Erased in a Moment: Suicide Bombing Attacks against Israeli Civilians,” October 2002, pp. 139–40, available at http://www.hrw.org/reports/2002/isrl-pa/, with Greg Myre, “Israel's Case against Arafat,” New York Times, September 21, 2003, p. A5.
99 See Marlise Simons, “Sharon Faces Belgian Trial after Term Ends,” New York Times, February 13, 2003, p. A12.
100 Speech by Reed Brody, Institute of International Humanitarian Law, San Remo, Italy, July 11, 2002. Also see Philippe Sands, “After Pinochet: The Role of National Courts,” in Philippe Sands, ed., From Nuremberg to The Hague: The Future of International Criminal Justice (Cambridge: Cambridge University Press, 2003), pp. 103–108.
101 “International Court of Justice: Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium),” International Legal Materials, May 2002, p. 549.
102 Louis Henkin, How Nations Behave: Law and Foreign Policy (New York: Columbia University Press, 1979), p. 1. Henkin notes that the “progress report” for faith in this progression has been “discouraging,” and that “force, diplomacy, and law do not represent discrete stages in international history” (p. 2).
103 Harold Nicolson, Diplomacy (London: Oxford University Press, 1964), p. 24; emphasis added; see also George F. Kennan, American Diplomacy (Chicago: University of Chicago Press, 1951), ch. 6; and Hans Morgenthau, Politics Among Nations, pp. 15–16.
104 John Dower, Embracing Defeat: Japan in the Wake of World War II (New York: W. W. Norton, 1999), p. 465.
105 “Cover Letter and Excerpts of Justice Department Report on Klaus Barbie,” New York Times, August 17, 1983, p. A8.
106 See Max Weber, “Politics as a Vocation,” in H. H. Gerth and C. Wright Mills, eds., From Max Weber: Essays in Sociology (New York: Oxford University Press, 1958), pp. 120–28.
107 Ratner and Abrams, Accountability for Human Rights Atrocities, p. 278; and Akhavan, “Beyond Impunity,” p. 28.
108 Kennan's opposition to unconditional surrender informed his critique of legalism: “Whoever says there is a law must of course be indignant against the lawbreaker and . . . when such indignation spills over into military contest, it knows no bounds short of the reduction of the law-breaker to the point of complete submissiveness—namely, unconditional surrender. It is a curious thing, but it is true, that the legalist approach to world affairs, rooted as it is unquestionably in a desire to do away with war and violence, makes violence more enduring, more terrible, and more destructive.” See Kennan, American Diplomacy, p. 111. One could disagree with Kennan's judgment as to what was necessary for a just and stable postwar peace, but not with his assessment of the consequences that flow from such choice in terms of the kind of war that would have to be fought.
109 A persuasive proportionality case can be made for continued fighting in the Sierra Leone case, where pressure from the United States and the UN led to the withdrawal of a Nigerian-led West African force as part of the 1999 peace agreement. While there were serious accusations of abuse of civilians by the Nigerian forces, they did fight effectively against the RUF. Its withdrawal, and that of the Pretoria-based mercenary force Executive Outcomes following a 1996 agreement with the RUF, paved the way for mass atrocities against civilians. See Traub, “The Worst Place in the World,” pp. 62–63.