SLOBODAN MILOSEVIC IS IN THE dock for war crimes, crimes against humanity, and genocide. For all the delays and procedural maneuvering, his trial marks a milestone in the extraordinary development of international criminal law from Nuremberg forward. In addition to the International Criminal Tribunals for the Former Yugoslavia and Rwanda, tribunals composed of national and international judges are operating in East Timor and Sierra Leone and being negotiated in Cambodia. And, if all goes as planned, Saddata Hussein will soon be tried in Iraq, by his own people, for national and international crimes.
From the role of U.S. Supreme Court Justice Robert Jackson at Nuremberg to U.S. leadership in creating and funding the Yugoslavia and Rwanda tribunals, the United States has been the indispensable nation in holding others to account. We have been the prime mover in transforming state liability into individual liability, a trend that will ultimately reshape the cote premises of international law.
For the peoples of the world, however, and for many Americans, this proud record has been almost completely overshadowed by the almost visceral U.S. opposition to the International Criminal Court (ICC). We have not only rejected the treaty but have also carved out a zone of immunity for U.S. soldiers in every country with which we have decent relations. Congress even passed a statute that actually authorizes the U.S. military to invade The Hague to rescue any U.S. soldier (or soldier from any allied country). This has come to be known in many corners as the "Hague Invasion Act," occasioning an angry debate in the Dutch parliament and producing sarcastic media scenarios about Delta Force storming Dutch prisons.
It is tempting to pin this opposition on the Bush administration. The effort to destroy the ICC has certainly resonated far more with the right. But President Clinton made only one public speech in support of the court, before it was negotiated. He signed the Rome Treaty only at the literal last hour. No member of Congress has come to its defense. And in the negotiations, we held out for nothing less than exemption.
SO WHEN EXACTLY DID THE AMERican conception of the rule of law come to mean one set of rules for others and another for ourselves? Somewhere around the time that we became afraid of the world, afraid to lead by example rather than by diktat.
The administration's opposition to the ICC, reflected in the Clinton administration's negotiating position (at the Pentagon's behest), was that we could not possibly risk having American soldiers tried anywhere but in American courts. …