On December 31st of last year, President Clinton signed off on the treaty forming the International Criminal Court. This Court seeks, in its charter, the laudable goals of "Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation". Essentially, this International Criminal Court exists as a permanent tribunal for war crimes, instead of the ad hoc tribunals convened, for instance, at Nuremberg after the Holocaust and in The Hague after the Bosnia-Herzegovinia war. The ICC exists to put the world on notice that those who commit "crimes against humanity" will be held responsible for their actions by an institution that will hunt them down not years after the fact but days and hours. It sounds like a great idea; yet, like most great ideas it does not withstand the tests of reality. The reality is that the court infringes on the sovereignty of the United States, opens doors to politically motivated prosecution of American citizens, and cannot enforce its decisions without the consent of all parties subject to it -- a rare circumstance indeed.
The ICC's definition of crimes seems to believe that there is an objective standard of "military necessity." You may not destroy things if it isn't necessary to your cause. You may not attack if the destruction caused far exceeds the military value of victory. You may not attack civilians if they are not "directly related" to the hostilities. Indeed, the ICC Rome Statute outlaws "wilfully causing great suffering, or serious injury to body or health" or "extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly." What is "military necessity?" These clauses force any military commander to avoid taking actions that might hasten victory but might also be construed and twisted by lawyers as violating Article 8. American officers and enlisted men would be responsible not only to the United States but to the ICC's subjective regulations. Thus the ICC interfers with the integrity of a state's military.
Moreover, the ICC's only restraint against its interference in a particular affair is whether "The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." Essentially, all that a party needs to invoke the ICC is to impugn the "genuine" nature of any country's investigation. Litigation against a party is further simplified with Article 17, section 2, which provides convenient options for a subjective judge or prosecutor to come up with such as "unjustified delay" and "The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility." Thus the ICC could take over even when a military tribunal has indicted U.S. troops by simply coming up with notions of the deck being stacked against the troops.
Take, for instance, the battle of Mogadishu in 1993. The prosecutor of this court -- who would be one of the most powerful men on Earth- could decide to indict U.S. troops for killing civilians in battle since the Somali irregulars were not uniformed. The U.S. operation to remove Mohammed Farah Aidid could have been construed as genocide against the Habr Gidr. Indeed, the very lopsidedness of the battle -- the United States lost approximately 20 troops in exchange for killing 300 Somali clansmen- opens U.S troops up to the "wanton destruction" clause. The U.S air attacks on Iraqi forces withdrawing from Kuwait in February 1991 would have been suspect as well. Yet if the Republican Guard had been allowed to escape then Saddam Hussein might have been even more powerful within Iraq and the Middle East than he is now.
Will this treaty act as a deterrent to all forms of aggression, both right and wrong? I believe not. The ICC exists only with the power of law behind it. Yet the law only has value when violation carries a penalty. There are no U.N. police forces extant that will find the violators of these treaty. Even Radovan Karazdic and Ratko Mladic, indicted for crimes against humanity, remain free within Bosnia. There is no guarantee of capture and conviction, simply a sort of scarlet letter put on war criminals. These individuals commit their crimes because they have no respect for the law; therefore, should we expect them to turn themselves in? Should we depend on the charity of NATO to contribute forces to hunt these individuals down? No, we cannot. NATO could have acted in Rwanda but failed due to U.S. hesitation. CNN, BBC, and Deutsche Welle already give the patina of illegitimacy to world miscreants such as Saddam Hussein, Slobodan Milosevic and Ariel Sharon. Yet atrocities continue to occur. It is too difficult to give the U.N. the power that it really needs -- a multinational force so powerful it could hunt down and destroy all those who rape and pillage and mutilate. Such a force would really violate the sovereignty of all the worlds' nations, yet is the only force possible to ensure that the ICC can do anything other than annoy nasties like Slobodan Milosevic. The world can shield the violators of human rights as easily as the East Bloc shielded Carlos the Jackal and Saudi Arabia hid Idi Amin.
The Nuremberg trials -- which truly punished the guilty -- were conducted only after victory was decided and Germany was physically occupied. We should continue our path of finding war criminals after hostilities cease. The danger is too great to have a permanent tribunal. It infringes on sovereignty and integrity and could arbitrarily determine the outcome of wars. The reason why war criminals are not located is not because there aren't laws against doing what they have done, it is simply that nobody chooses to enforce the law. Let us enforce vigorously existing laws and then determine the necessity for the ICC.
