Who's afraid of the Big Bad Wolf? The International Criminal Court as a weapon of asymmetric warfare.

• Author: Austin, W. Chadwick

ABSTRACT

The United States is engaged in a war on terror against enemies who wage "asymmetric war" through terrorism, media manipulation, and "law-fare"--exploiting judicial processes to achieve political or military objectives.

This Article explores whether the fledgling International Criminal Court (ICC) could eventually be exploited by these groups as a tool of asymmetric "law-fare." It briefly traces the history of the ICC and recounts why the United States opposes the Court. Examining the methods of asymmetric war, the Authors then explore whether the ICC could be exploited by future asymmetric warriors.

The Authors describe three asymmetric methods that could be used to exploit the Court: (1) misusing the Court's investigative processes, (2) filing questionable or fraudulent complaints, and (3) manipulating mass media. They then discuss three terrorist objectives that could be obtained through asymmetric tactics.

The Authors conclude that, at its current stage, the Court does not pose a large threat from this exploitation. A future, more stable ICC, however, could pose a greater danger--especially if the United States ratifies the Rome Treaty.

TABLE OF CONTENTS I. INTRODUCTION II. THE INTERNATIONAL CRIMINAL COURT: HISTORY AND CONTROVERSY A. All Roads Lead to Rome B. Conflict and Controversy: Objections to the International Criminal Court III. ASYMMETRIC WARFARE AND THE PRACTICE OF "LAW-FARE". A. Historical Underpinnings B. Modern Asymmetric Warriors C. Asymmetric Exploitation of Mass Media D. The Practice of "Law-Fare". IV. EXPLOITING THE INTERNATIONAL CRIMINAL COURT AS A WEAPON OF ASYMMETRIC "LAW-FARE". A. Exploiting the Investigative Processes of the International Criminal Court 1. The Broad Mandate of the International Criminal Court 2. The Proprio Motu Power and the Obligation to "Pre-Investigate". 3. The Dangerous Role of Non-Governmental Organizations B. Exploiting Questionable or Fraudulent Claims of U.S. Violations 1. Investigating Questionable Claims of U.S. War Crimes 2. Inventing Fraudulent Claims of U.S. War Crimes C. Exploiting the International Criminal Court through Use of Mass Media D. Asymmetric Objectives of Exploiting the International Criminal Court 1. Creating Risk-Averse Policymakers and Commanders 2. Diverting Resources from the War on Terror 3. Splitting International Coalitions V. CONCLUSION I. INTRODUCTION

The United States is fighting a global war on terror with battlefields in such distant lands as Afghanistan, Iraq, and the Philippines. (1) U.S. enemies in this war are not nation-states, but a network of terrorist groups; they seek to put "Satan's empire" (2) in decline by dividing the United States from the international community, destroying U.S. hegemony, and reducing the influence of U.S. social values. It is not on the conventional field of battle, however, that these enemies expect victory. Instead, through a campaign of intimidation and terror they hope to drive the United States into economic, political, and social recession. (3) They wage an asymmetric war.

Asymmetric warfare--engaging a superior enemy by using alternative means to achieve political or military objectives--is not a new concept; some cite the Biblical story of David and Goliath as the classic example of such asymmetry. (4) Considering the military might of the modern U.S. Goliath, it is no surprise its enemies have turned to other methods--hijackings, suicide bombings, and computer network attacks--to catapult the stone that will bring down the world's only remaining superpower. But those who oppose the United States also seek non-violent means to advance their agenda. When possible, they will exploit both domestic and international judicial institutions to influence U.S. policy; this practice is known as "law-fare." (5)

This Article explores whether the fledgling International Criminal Court (ICC) could eventually be used as a weapon of asymmetric "law-fare" against the United States. Part II briefly traces the history of the ICC and recounts the reasons the United States opposes the court. Part III examines the purpose and methods of asymmetric war, including past uses of "law-fare." Part IV discusses whether the ICC could be exploited in the future to cow the U.S. Goliath into a defensive posture and disrupt its war on terror. Is the ICC--or will it become--the "Big Bad Wolf?" (6) The Article concludes that this threat is unlikely in the court's early development; however, the ICC's evolving mechanisms may make it vulnerable to asymmetric exploitation in the future.

2. THE INTERNATIONAL CRIMINAL COURT: HISTORY AND CONTROVERSY

   A. All Roads Lead to Rome

   Throughout the twentieth century the international community flirted time and again with the concept of a standing criminal court. At the conclusion of World War I, the victorious nations begrudgingly allowed Germany to prosecute its own nationals for war crimes. (7) The victors soon regretted that decision, however, as Germany conducted little more than show trials and nearly all violators went unpunished. (8) Between the two World Wars, the League of Nations contemplated an international criminal court, but that idea proved too bold as politics and the outbreak of World War II squandered the opportunity. (9) After the Treaty of Paris, the World War II victors applied the lessons learned from past mistakes; they established the Nuremburg Tribunal and the International Tribunal for the Far East. (10) Although met with accusations of "victor's justice," (11) the tribunals created a new paradigm of international criminal jurisprudence (12)--the accused were charged with crimes against peace, war crimes, and crimes against humanity. (13) These two tribunals constituted the first real efforts of the modern era to establish a valid and powerful international court. (14) But with the fall of the "Iron Curtain," the dream of a standing international court remained relatively undisturbed until the 1990s. (15)

   The eruption of ethnic conflict and slaughter in Rwanda and Yugoslavia during the 1990s starkly reminded the world of its need for an international criminal court. In response, the U.N. Security Council created two ad hoc tribunals: the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). (16) Drawing upon precedents set forth in the Nuremburg and Far East Tribunals, the courts went to work--with great expense and many challenges. (17) And though the tribunals significantly contributed to international jurisprudence, (18) they also highlighted anew the need for a standing criminal court. (19)

   Meanwhile, the United States continued to advocate for the creation of the proposed ICC; (20) its support continued well into the Rome Conference. (21) But when the Conference convened in Rome on June 15, 1998, it quickly became apparent--thanks largely to the concerted efforts of numerous non-governmental organizations (NGOs) (22)--that the ICC would look far different than originally envisioned by the United States. (23) When it came time to vote (24) for establishment of the Court, the statute overwhelmingly passed: 120 States voted in favor, 21 States abstained, and 7 States (including the United States, Libya, China, and Iraq) voting against. (25)

   While partly defeated at the Rome Conference, the Clinton administration remained engaged in the development of the Court for the next two years, addressing many of its concerns. (26) The United States eventually signed the treaty on December 31, 2000; (27) however, on May 6, 2002--under the direction of President Bush--the United States formally notified the United Nations that it no longer intended to become a party to the Rome Statute. (28) This notification was negatively characterized by critics as an "unsigning" of the treaty, contrary to international law. (29) When the ICC began its "legal life" on July 1, 2002, the United States sat on the sidelines. (30)

   B. Conflict and Controversy: Objections to the International Criminal Court

   The United States justified its rejection of the Rome Statute on various grounds. (31) The United States objected to ICC jurisdiction over nationals of a non-party state, (32) contested the article that prohibited State Parties from making reservations to the Rome Treaty, (33) and disagreed with including the "crime of aggression" within the ICC's purview. (34) Moreover, the United States opposed the push to grant the ICC universal jurisdiction and remained unhappy with the compromise that established the principle of "complementarity," which allowed the Court to prosecute crimes over the objection of the relevant State Party in certain circumstances. (35) The United States believed complementarity would cede too much sovereignty to an international body. (36)

   Most significantly, the United States resisted the Chief Prosecutor's proprio motu (37) power, which gave him the ability to independently initiate investigations based on information from virtually any source, as long as he had the approval of the Court's Pre-Trial Chamber. (38) Policymakers worried that if the Office of the Prosecutor became politicized, the Court might be inundated with frivolous litigation. (39) The United States also feared that these politicized powers could be abused to the detriment of U.S. national interests, considering the unpopular world opinion of the U.S. military and accompanying anti-U.S. sentiment. (40)

   Supporters of the ICC provide persuasive academic rebuttals to these U.S. objections, arguing primarily that the Court's built-in procedural safeguards should soothe any U.S. fears. (41) But while there currently may be little to fear, none of these arguments can address U.S. concerns of a future situation arising under a more powerful ICC. Indeed, the "tenacious commitment" of some countries to the framework agreed upon at the Rome Conference may have been "driven by a desire to constrain the American...