In the summer of 1998, representatives from 160 countries and a host of non-governmental organizations converged in Rome to draft a mandate for the establishment of the world's first global court for the prosecution of war crimes, genocide, and crimes against humanity. One month later, the Rome Statute emerged, creating the International Criminal Court (ICC). The theoretical foundation of the Rome Statute was the principle of jus cogens, the idea that peremptory moral norms bind all human beings regardless of national identity. Immediately hailed as a breakthrough in the development of an international legal order, the Rome Statute had been signed by 139 countries by the Spring of 2003 and was poised to begin hearing cases sometime next year.
Yet the future of the ICC is currently in jeopardy due to a global campaign of opposition by the United States. Even before the drafting of the Rome Statute, the United States argued that the establishment of a permanent court with international jurisdiction conflicts with the principle of national sovereignty, which grants each state absolute power of jurisdiction within its territory. In December 2001, the US Congress passed the American Service Members' Protection Act (ASPA), which banned the United States from cooperating with the ICC and established a presidential prerogative to use "all means necessary" in preventing the prosecution of US citizens by the ICC. Since then, the administration of US President George W. Bush has tirelessly worked to ensure absolute immunity from the court, signing deals with at 18 countries to forbid ICC extradition of US nationals. Other ICC signatory states report that the United States has threatened them with a withdrawal of military and economic aid if they do not sign similar agreements.
If the United States succeeds in preventing the ICC's establishment, it will have undermined the first permanent system of accountability for the world's most heinous dictators, megalomaniacs, and mass murderers. If the United States is unsuccessful in obstructing the ICC, it will have undermined its own global soft power by entrenching widespread perceptions of US exceptionalism. But regardless of what happens, one thing is certain: the Bush administration's stance against the court is inconsistent. It goes against the basic tenants of international legal theory and is fundamentally out of line with the United States' historic support for the establishment of international law.
Ad Hoc Justice
The founding principle of the ICC, jus cogens, dates back to well before the United States. It emerged during the 15th century to rein in not maniacal dictators, but pirates. Piracy, not genocide, was the first crime interpreted as flouting the fundamental values of the civilized world. States therefore claimed the authority to exercise universal jurisdiction in pursuing and punishing pirates regardless of the territory or territories where a pirate may have committed his crime.
The first application of jus cogens to state officials occurred in response to the horrors of World War II. The victorious Allies set up an ad hoc court in Nuremburg, Germany to try high-ranking Nazi officials accused of war crimes and genocide. Unlike previous war crime tribunals, the Nuremburg trials did not base their prosecutions on Germany's breaching of treaty agreements but instead convicted Nazi officials under the grounds of jus cogens that their crimes were so heinous that they threatened the very fabric of human morality and international respect for the rule of law.
The Nuremburg trials signaled a shift away from the positivist model for international relations in which states--and therefore agents of the state--were subject only to their own laws and treaty obligations. What replaced this model was a new cosmopolitan framework in which individuals had obligations to their fellow human beings that superseded state law. …