The United States government prides itself in assisting the global expansion of democracy. This boast makes its attack on the new International Criminal Court particularly disappointing. The ICC is one of the great democratic achievements of our age. It merits the support and adherence of the United States, not its continued opposition.
The ICC, inaugurated on July 1, is empowered to prosecute individuals for genocide, war crimes and crimes against humanity. It was for the purpose of prosecuting these very crimes that the United States persuaded the U.N. Security Council to establish ad hoc criminal tribunals for Rwanda and the former Yugoslavia.
But these tribunals were set up to punish atrocities that had already broken out. Many people thought there should be a permanent court to warn perpetrators ahead of time of the consequences of their deeds. The ICC was created to play this role.
When a country ratifies the treaty authorizing the ICC, it grants the court jurisdiction over crimes committed by its citizens and crimes committed on its territory.
Under the first form of jurisdiction, a ratifying country makes all of its citizens vulnerable to the court’s prosecution for genocide, war crimes and crimes against humanity. Ratification thus becomes an important measure of a country’s commitment to the protection of fundamental human rights — a commitment that underlies the democratic enterprise itself. The 87 countries that have so far taken this pledge deserve our admiration and applause.
So why does the United States oppose the court? It complains that, under the second form of jurisdiction, U.S. citizens become vulnerable to prosecution for acts allegedly committed on the territory of ratifying countries, even though the United States has not itself joined the court.
Under the “principle of complementarity,” however, the court may undertake a criminal investigation only if the relevant national government proves unwilling or unable to do so. A bona fide investigation by the U.S. government into credible charges of genocide, war crimes and crimes against humanity would prevent any activity by the ICC. If the ICC prosecutor claims that the U.S. investigation is a sham, the U.S. government can challenge that ruling before the judges of the court.
The United States nonetheless charges that it is unfair even in principle to allow the prosecution of citizens whose governments have not joined the court. This objection flies in the face of the universally recognized right of governments to punish crimes committed on their territory by citizens and foreigners alike — a right flowing from the undisputed responsibility of governments to preserve order in their domains. (Note that the United States prosecutes, punishes and indeed executes foreigners for crimes committed on American soil.)
If a country fears that its inhabitants could suffer genocide, war crimes, or crimes against humanity at the hands of foreigners, and foresees that it may lack the means or the will to prosecute such crimes itself, it has every right to entrust an international court with the power of doing so on its behalf.
Attempting to portray the ICC as untrustworthy, the United States has labeled it an “institution of unchecked power,” but this is untrue to the facts. The ICC is accountable to an assembly of member states that chooses its prosecutors and judges and can vote to have them removed. Unsurprisingly, the court consists predominantly of democratic states deeply committed to the values on which it is founded. Equally unsurprisingly, the world’s worst violators of human rights have declined to join the court.
It is thus doubly distressing that the Bush administration, with Congress’ backing, has announced that it will withhold military aid from most ICC member states unless they first sign formal agreements never to extradite any U.S. or allied citizens to the court’s jurisdiction.
This policy punishes countries that have pledged to prevent human-rights atrocities and that stand by the worthy principle that their inhabitants deserve protection from these crimes. The policy rewards the world’s most repressive regimes, which now become favored recipients of the United States’ huge military assistance program.
By attacking the ICC, the United States undermines a promising international effort to secure the permanent protection of fundamental human rights. It diverts its support to countries that choose repression over reform. The anti-ICC campaign has become a runaway train that threatens peace, justice and democracy around the world.
There is still time to come to our senses. The United States should reverse course and give its support to the ICC.
Jamie Mayerfeld is an associate professor of political science at the University of Washington.