Courting danger: what's wrong with the international criminal court.

• Author: Bolton, John

Advocates of a permanent international court to try perpetrators of war crimes and other "crimes against humanity" achieved a major success in July 1997, with the adoption of a multilateral agreement called "the Statute of Rome." This treaty will enter into force after ratification by sixty states (which is expected to occur in 1999 or soon thereafter), creating the first new global juridical institution since the International Court of Justice (ICJ) in 1945. In the eyes of its supporters, the nascent International Criminal Court (ICC) is simply an overdue addition to the family of international organizations, an evolutionary step up from the Nuremberg tribunal, and the next logical institutional development over the ad hoc war crimes courts in Bosnia and Rwanda.

On the surface, this logic is straightforward. Through the Genocide Convention of 1948, the four Geneva Conventions of 1949,(1) and subsequent agreements, many of the "principles" of Nuremberg have been adopted in international treaties. The Cold War, however, essentially froze any prospect that the United Nations could serve as a useful vehicle for the creation of new institutions to "enforce" these conventions. Until the Security Council created the Bosnia tribunal in 1993, and a copy for Rwanda shortly thereafter, there were no international war crimes courts. Only the sporadic use of national judicial mechanisms existed, and more often than not these legal systems were either unavailable to the victims of war crimes and crimes against humanity, or were deemed inadequate afterthoughts. The ICJ, although popularly known as "the World Court", has jurisdiction only over disputes between states, not the adjudication of individual guilt or innocence for violations of international codes of conduct.(2)

With the fading of the Cold War, and particularly with the inauguration of the Clinton administration, however, the International Law Commission(3) resumed serious discussions about the creation of a permanent international criminal court, moving in 1994 to a Preparatory Committee established by the General Assembly. This Committee (essentially a committee of the whole General Assembly) made the final preparations for the Rome Conference in the summer of 1998.

The product of the Conference - the Statute of Rome - establishes both substantive principles of international law and creates new institutions and procedures to adjudicate these principles. Substantively, the Statute confers jurisdiction on the ICC over four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

"Genocide" is defined essentially as in the original Genocide Convention of 1948, and prohibits acts intended to destroy national or ethnic groups (Article 6 of the Rome Statute). "Crimes against humanity" are broadly defined to prohibit "widespread or systematic" attacks against civilians that result in murder, enslavement, torture, rape, persecution, enforced disappearances, apartheid, and other enumerated offenses (Article 7). Prohibited "war crimes" include acts "committed as a part of a plan or policy" such as: violations of the four Geneva Conventions; attacks against civilian populations and objects or humanitarian personnel or installations; using weapons that cause superfluous injury or unnecessary suffering; outrages upon personal dignity; starvation as a method of warfare; using civilians as human shields; and a variety of other offenses (Article 8). The "crime of aggression", although declared criminal, is not defined, and the ICC's jurisdiction will not actually attach until the states party to the Statute of Rome agree on a definition pursuant to the Statute's amendatory articles.

Organizationally, the Statute creates an International Criminal Court of eighteen justices to be selected by the treaty parties, and elaborates the Court's structures and procedures. Judges on the Court must reflect "the principal legal systems of the world" and an "equitable geographical representation." Unlike the ICJ, the Court's jurisdiction is "automatic", applicable to individuals accused of crimes under the Statute, in many cases regardless of whether their governments have ratified it (Article 25). Moreover, the Court's jurisdiction includes not only those who actually commit offenses, but also commanders or persons who ordered their actions; who knew or should have known that crimes were about to be committed; or who failed to exercise proper control over subordinates, including heads of state or government and members of parliaments (Articles 27 and 28). Those convicted are subject to imprisonment and fines, but there is no provision for the death penalty (Article 77).

A particularly important new institution is the Office of the Prosecutor, which "shall act independently as a separate organ of the Court" (Article 42). The Prosecutor, elected on a secret ballot by an absolute majority of the parties, is responsible for conducting investigations and prosecutions before the Court; no member of the Prosecutor's staff may accept instructions from any outside source. The Prosecutor may initiate investigations based on referrals by those states party to the Statute, or on the basis of information which he or she otherwise obtains. Although the Security Council may refer a matter to the ICC, or may order it to cease a pending investigation, there is no requirement that the Council play any role at all in the ICC's work (Article 16).

Described in these terms, one might assume that the ICC is simply a further step in the orderly march toward the international rule of law and the peaceful settlement of international disputes, sought since time immemorial. Why, then, did the Clinton administration - a principal moving force to create a permanent war crimes court in the five years before the Rome Conference - find itself, to its dismay, unable even to sign the Statute, let alone propose its ratification by the Senate? Why was the United States so isolated from its European allies? What are the prospects for an ICC to which the United States does not belong?

But Whom Will the Hammer Strike?

What happened in Rome is the completely unintended consequence of the administration's own basic policies, starting in its first days in office. Security Council Resolution 808, creating an international criminal tribunal for Yugoslavia, was adopted on February 22, 1993, just a month after the inauguration. The Rwanda tribunal followed in Security Council Resolution 935 in July 1994. The administration declared these tribunals justifiable on their own merits, and also saw them as building blocks for the ICC. Over two years ago, David J. Scheffer, a confidante of Secretary of State Albright and chief American negotiator on the ICC, wrote:

The ultimate weapon of international judicial intervention would be a permanent international criminal court (ICC). . . . The ad hoc war crimes tribunals and the proposal for a permanent international criminal court are significant steps toward creating the capacity for international judicial intervention. In the civilized world's box of foreign policy tools, this will be a shiny new hammer to swing in the years ahead.(4)

But this new hammer - the Court and the Prosecutor - has serious problems of legitimacy. The ICC's principal difficulty is that its components do not fit into a coherent "constitutional" structure that clearly delineates how laws are made, adjudicated, and enforced, subject to popular accountability and structured to protect liberty. Instead, the Court and the Prosecutor are simply "out there" in the international system, ready to start functioning when the Statute of Rome comes into effect. This approach is inconsistent with American standards of constitutional order, and is, in fact, a stealth approach to eroding constitutionalism.

This difficulty stems from the authority purportedly vested in the ICC to create authority outside of (and superior to) the U.S. Constitution, and to inhibit the full constitutional autonomy of all three branches of the U.S. government - and, indeed, of all states party to the Statute. ICC advocates rarely assert publicly that this result is central to their stated goals, but it must be for the Court and Prosecutor to be completely effective. And it is for this reason that, whether strong or weak in its actual operations, the ICC has unacceptable consequences for the United States.

The Court's legitimacy problems are two-fold, substantive and structural. As to the former, the ICC's authority is vague and excessively elastic. This is, most emphatically, not a court of limited jurisdiction. Even the meaning of genocide, the oldest codified among the three crimes specified in the Statute of Rome, is not clear. The ICC's creation shows graphically all of the inadequacies of how "international law" is created.

The U.S. Senate, for example, could not accept the Statute's definition of genocide unless it is prepared to reverse the position it took in February 1986 in approving the Genocide Convention, when it attached two reservations, five understandings, and one declaration. One understanding, intended to protect American servicemen and women, provides that ". . . acts in the course of armed conflicts committed without the specific intent [required by the Convention] are not sufficient to constitute genocide as defined by this Convention." Another provides that:

. . . with regard to the reference to an international penal tribunal in article VI of the Convention, the United States declares that it reserves the right to effect its participation in any such tribunal only by a treaty entered into specifically for that purpose with the advice and consent of the Senate.(5)

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