Compromising Justice: Why the Bush Administration and the NGOs Are Both Wrong about the ICC

Article excerpt

The International Criminal Court (ICC) is the first permanent international tribunal designed to hold individuals criminally accountable for genocide and other large-scale or officially planned atrocities. It entered into force on July 1, 2002, sixty days after the sixtieth state ratified the Rome Statute, which had been negotiated four years earlier.

The establishment of the court elicited radically different responses from its supporters in the human rights community and its opponents in the U.S. government. To the former, the ICC is the fulfillment of the promise of Nuremberg that the perpetrators of international crimes will be held accountable, establishing a neutral court--unlike the one at Nuremberg, in which the victors judged the vanquished--that can operate independently of politics--unlike the Yugoslav and Rwandan tribunals, which were created by the Security Council. And if it can mete out justice consistently and impartially, then, as UN Secretary-General Kofi Annan declared, "impunity has been dealt a decisive blow." (1)

To the George W. Bush administration, the ICC is less a promise than a threat that empowers an unaccountable court to initiate politically motivated prosecutions of U.S. military personnel and public officials. To avert that possibility, it has not only withdrawn the U.S. signature from the Rome Statute, but has also played "hardball" with the international community to weaken and delegitimize the institution, seeking to immunize Americans everywhere from its jurisdiction, and even going so far as to hold up the Security Council resolution condemning the bombing of the UN offices in Baghdad in August 2003, if it contained language that the perpetrators might be subject to the jurisdiction of the ICC. (2)

Despite their differences, proponents and detractors do have one thing in common: they assume that the ICC can evolve into a powerful institution independent of states, either to promote justice or "make mischief." Both exaggerate the likely ability of the court to do either. The Bush administration attributes to the ICC powers it either does not have or is unlikely to exercise. Therefore, its stance unnecessarily compromises an institution that can make a contribution to international justice. By contrast, many within the human rights community overestimate the ability of tribunals to enforce justice independently of politics and underestimate the need, at times, to compromise justice--at least prosecutorial justice--in the interest of diplomacy and conflict resolution.


The ICC represents the most ambitious step in the evolution of international law toward "introducing criminal accountability into the culture of international relations." (3) To the architects of traditional international law, which grew out of the birth of the modern state system in Europe following the Treaty of Westphalia in 1648, such a development would have been unthinkable.

First, in traditional, or Westphalian, international law, only states have rights and duties. Individuals are entitled to those rights guaranteed by their political systems and there is no international standard of rights to which they could appeal. Nor are individuals subject to international criminal liability since they are under "the exclusive jurisdiction of the State on whose territory they live." (4) Hence, individuals' violations of international law could only be prosecuted by national courts if they are defined as crimes in national legislation. Failure to do so involves state, not individual, criminal responsibility.

Second, Westphalian law is not about principles of justice, such as human rights or nonaggression. Rather, it is about defining the prerogatives of sovereign states and facilitating diplomacy between them. This is embodied in its central rules, such as noninterference in the internal affairs of sovereign states, personal immunity from foreign courts for heads of state and diplomats, functional immunity for officials who act on behalf of the state, and jurisdiction limited to some nexus to a state's territory or its nationals. …