U.S. vs. ICC?

The recent Council on Foreign Relations report “From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference” tells one side of a complex story. The author Vijay Padmanabhan asserts that the “United States has historically been the leader in international justice efforts,” but now must oppose the International Criminal Court’s (ICC) endeavor to activate its power to prosecute crimes of aggression.

Why the need for a sudden change in U.S. policy? Actually, there has been no change. The United States has consistently tried to evade international jurisdiction and control the way it is imposed on others. By skirting this central fact, Padmanabhan misses the ways that this U.S. policy falls short. In particular, he overlooks how an aggression-prosecuting ICC, even if it prosecutes U.S. leaders, could serve U.S. security interests.

Decoding History

The claim that the “United States has historically been the leader in international justice efforts” relies on a selective reading of history. Padmanabhan correctly notes the U.S. role in establishing the Nuremberg trials, the corresponding prosecutions of Japanese officials, and the more recent international tribunals dealing with crimes in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and Lebanon.

However, the other half of the story is that the United States has always worked hard to prevent its citizens from being subject to international justice. This tradition began even before the United States came into existence. As a recent Heritage Foundation report notes, British vice-admiralty courts were high on the list of colonial grievances that sparked the American Revolution. The United States also declined to join the 19th-century international slave-trade tribunals established by Britain.

This pattern held in the 20th century as well. After World War I, Woodrow Wilson rejected Britain’s proposal to try German leaders in international tribunals. And though Wilson promoted the League of Nations, which included the Permanent Court of International Justice, the United States of course never joined. Nor were the Allied powers prosecuted for any of their actions during World War II, even though, as Robert McNamara famously admitted in The Fog of War, U.S. leaders “were behaving as war criminals.” The United States also joined the Soviet Union in striking down proposals for compulsory jurisdiction for the International Court of Justice (ICJ). Since then, the United States and the ICJ have not been the best of friends.

Current U.S. resistance to the ICC fits this historical pattern.

Untangling Padmanabhan’s Argument

According to Padmanabhan, the United States should oppose the ICC’s aggression-prosecuting powers because the legal definition of aggression is currently too vague, making it:

unclear whether a preventive or preemptive strike against a proliferator of weapons of mass destruction (WMD) — for example, a U.S. or Israeli strike against suspected Iranian nuclear weapon program sites — would constitute criminal aggression.

However, there is little real debate about whether aggression would encompass preventive military action. The definition adopted by the ICC’s Special Working Group on the Crime of Aggression in 2008 includes an “invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack,” and the “[b]ombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.” Padmanabhan emphasizes that the definition only applies to an act “which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

But a preventive military strike would surely qualify. After all, following Israel’s 1981 preventive strike against Iraq, the UN Security Council unanimously passed Resolution 487, which unequivocally “condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct” and “[c]alls upon Israel to refrain in the future from any such acts or threats thereof.”

Regardless, Padmanabhan asserts that determinations of aggression are “inherently political in nature.” He thus claims that the ICC’s aggression jurisdiction should be limited to cases approved by the Security Council and should only apply to parties that have consented to the ICC’s jurisdiction over aggression. This would effectively shield the United States from prosecution while allowing it to control, via its Security Council veto, the prosecutions of others.

To the U.S. security strategist, this scenario may seem ideal. The United States could take military action without fearing legal consequences while other countries would not have the same luxury. With a greater freedom of action, the United States would be better poised than its fellow nation-states to pursue its security interests. On the other hand, this arrangement may appear to violate a core principle of our international system: “the sovereign equality of all its Members” articulated in the UN Charter. If other countries are subject to prosecution, one might ask, why should the United States be exempt?

Thus, the United States seemingly faces a choice between law and security. However, this dichotomy is false.

Security and Justice

The United States can actually better serve its security interests by embracing the ICC and subjecting itself to the constraints of international law.

The U.S. Army/Marine Corps Counterinsurgency Field Manual acknowledges the strategic value of law in wartime. The manual warns against “[i]llegitimate actions” such as “those involving the use of power without authority” and “unjustified and excessive use of force.” Such actions can be “self-defeating,” and can “undermine both long- and short-term [counterinsurgency] efforts.” As in counterinsurgency, in the global struggle against anti-American extremism, the United States must win the hearts and minds of the world’s population. Evading ICC jurisdiction raises questions about the legitimacy of U.S. global leadership and fuels anti-Americanism. In contrast, U.S. submission to the ICC would be a powerful act of global leadership.

The threat of potential prosecution also might make U.S. leaders more cautious about the use of military force. Padmanabhan notes that had the ICC’s aggression-prosecuting powers been active in 2003, the court would have had to make a determination about the Iraq War’s legality. Perhaps the costliness of potential ICC prosecution would dissuade U.S. leaders from undertaking wars with thin legal rationales. As Kenneth Waltz argues in Theory of International Politics, strong states “can be inattentive; they can afford not to learn; they can do the same dumb things over again.” But legal ramifications can force strong states to learn from their mistakes.

Self-restraint has particular strategic value given that U.S. disregard of international laws and norms is frequently thrown back in its face. The United States led NATO’s Yugoslavia bombing campaign, which the Independent International Commission on Kosovo dubbed “illegal but legitimate.” Several years later, when the United States condemned Russia’s military actions in Georgia, Vladimir Putin asserted that Russia’s actions were “no different” than those of NATO. Similarly, in 1946, the U.S. Senate passed a resolution accepting the compulsory jurisdiction of the ICJ for all international disputes. However, the resolution included various reservations, including the “Connally amendment,” which allowed the United States to evade prosecution by deeming a dispute “domestic” in nature. Several years later, after Bulgaria shot down a passenger flight killing six U.S. nationals, the United States brought the case to the ICJ, and Bulgaria evaded prosecution by asserting that the incident was within its “domestic jurisdiction.”

As Louis Henkin once wrote, “to control the behavior of other governments, a nation may have to accept corresponding limitations on its own behavior.” Supporting an aggression-prosecuting ICC involves just such a trade-off.

Furthermore, though Padmanabhan advocates for Security Council control over the ICC’s aggression jurisdiction, the Security Council’s track record on aggression is poor. Because all five of the Council’s permanent members (P-5) enjoy veto power, Security Council gridlock often hampers U.S. efforts to punish aggressors. The United States and U.S. allies have thus historically sought other international institutional avenues. The Soviets vetoed a resolution regarding the 1946 Corfu Channel incident, and Britain took the case to the ICJ, eventually winning $2 million in compensation. When the Soviet Union vetoed Security Council condemnation of its Afghanistan invasion, the UN General Assembly took up the issue and passed a resolution calling for Soviet withdrawal. Keeping the ICC’s aggression jurisdiction free from Security Council control would allow the court to function as yet another venue for delegitimizing and punishing P-5 acts of aggression.

The United States will not join the ICC in the near future because, as Padmanabhan notes, the Senate will never ratify the Rome Statute in its current form. However, the United States should support the ICC. In particular, ICC aggression jurisdiction is an area in which U.S. strategic and moral interests coincide. Increasing the ICC’s power, contrary to Padmanabhan’s warnings, would only strengthen U.S. security.

Rob Grace, a contributor to Foreign Policy In Focus, blogs for the Foreign Policy Association. He is also an award-winning playwright whose work has been produced around the world.