If you kill one person, an old joke goes, you get sent to jail. Kill 20, you get sent to a mental asylum. Kill 20,000, you get sent to Geneva for peace talks. The story is very much a reflection of the mass atrocities of the 20th century. The search for universal justice is rooted in the determination to get rid of the source of such cynicism. Writing in 1946 to her former professor Karl Jaspers, who had remained at Heidelberg University throughout World War II, renowned political philosopher Hannah Arendt questioned how one could comprehend what the Nazis had done within the existing compass of criminal law. “The Nazi crimes explode the limits of the law,” she wrote. “We are simply not equipped to deal with a guilt that is beyond crime and an innocence that is beyond goodness or virtue.”
Objecting that such a moral vocabulary would endow Nazi crimes with “satanic greatness,” Jaspers insisted on seeing them instead “in their total banality” — a phrase that Arendt famously used in the subtitle of her book published nearly two decades later.
The International Criminal Court, or ICC, is both the culmination of the search for universal jurisdiction, where jurisdiction depends not on the location of the crime but its nature, and an emblem of the difficulties that lie ahead in translating the vision into reality.
These are especially challenging times for multilateralism, when the very principle as well as some of its institutional manifestations are under attack in parts of the world. The strategic logic underpinning multilateral institutions is that of a world united in action on the road to a common destiny. The United Nations is at once the main embodiment of the principle of multilateralism in a world of sovereign states, and the principal vehicle for the pursuit of multilateral goals. The ICC is the institutional embodiment of the principle of multilateralism with respect to international criminal justice, which can take its rightful place alongside force and diplomacy as the organizing principles of international behavior.
The strong affirmation of the ICC by the Europeans and most of the international community has collided with the determined rejection of the new court by the Americans. If the European stance is more evolutionary and progressive, Washington’s is more consistent over time. The United States has always acted in the belief that when it comes to international criminal justice, politics trumps law. It’s the Europeans who wish to advance to elevating law above politics. While the U.S. tradition is to rely on military power for national security, Europe, reflecting its own troubled history, has succeeded in establishing peace on the continent through embedding cooperation in inclusive economic, political and military institutions.
In the context of the state of evolution of the institutions of world order, however, Washington has a point. In stable polities, constitutional order has advanced to the point where the justice system is separated from the legislative and executive branches in order to enhance the credibility of all three. But this is only possible because the constitution articulates the agreed political vision for the community as a whole. Such first-order questions are yet to be settled for the international community, and therefore the interplay of law and politics is far more intimate.
With the ICC, the U.S. may have been tripped by its own cleverness in setting up the ad hoc criminal tribunals for Yugoslavia (ICTY) and Rwanda. But both were odd mixtures of idealism, opportunism and guilt. They were alibis for inaction, not indicators of toughening new standards of international criminal accountability. And by keeping them under the jurisdiction of the U.N. Security Council, the U.S. made sure that it controlled their destiny.
Unfortunately for Washington, they seem to have generated an unstoppable momentum for a permanent ICC with genuinely universal jurisdiction, with the authority to investigate heinous international crimes wherever, whenever and by whoever they are committed. Ad hoc international criminal tribunals are important, but episodic advances in the evolution of individual criminal accountability. They leave the process of international law more vulnerable to the pursuit of power politics than would be possible in the ICC. The court thus marks a major milestone on the road to being rescued from the tyranny of the episodic in international criminal justice.
To advocates of the ICC, permanent status and institutionalized identity attenuate perceptions of politically motivated investigations and selective justice. Permanence also helps to cumulate and build on precedents. The ICC will be an efficient and cost-effective alternative to ad hoc tribunals with respect to money, time and energy. Subjecting prosecutorial investigations and indictments to Security Council authorization, one of the key U.S. demands, would have politicized the process and tainted the Court’s impartial credibility from the very start.
But by extending jurisdiction over non-party nationals, the ICC displaces the state as the conduit of democratic representation without providing an alternative mechanism for democratic governance. It is not embedded in a broader system of democratic policymaking and there is no political check on it. Why then should it have the authority to overturn policy established by national democracies?
There is another respect in which the U.S. fears may be well founded. For justice to be done, it is not enough that the accused actually have done the crimes for which he or she is charged. It is just as important to ensure that the rule-of-law standard is observed with regard to the collection and presentation of evidence, the right to cross-examination of witnesses, and all the other procedures that we associate with due process and a fair trial. For the trial to be authentic, the possibility of acquittal must be as much a requirement as the possibility of conviction.
In the U.S. legal-constitutional culture in particular, human rights law give primacy to protecting the rights of the arrested and the accused without regard to guilt or innocence. Impelled by the momentum of international accountability, the balance has shifted in favor of the victim and in favor of conviction. The conviction rates of the international criminal tribunals have been notably higher than for criminal prosecutions in the established Western democracies (although not Japan).
Washington has itself been complicit in this transformation from protecting the rights of the accused to privileging the case for the prosecution, for example in insisting that Milosevic be handed over to the ICTY in the Hague regardless of Serbian legal niceties, or else.
Professor David Forsythe of the University of Nebraska has argued that the U.S. rejection of the ICC betrays a curious mixture of exceptionalism and power politics. Washington may preach universalism, but it practices national particularism and cultural relativism. Much of U.S. foreign policy rests on the self-image of a good and great people divinely ordained to lead the world by example at home and by activism abroad. This intensified after the end of the Cold War, and then again with the present administration.
Washington bristles at the audacity of the “international community” to constrain or direct U.S. international behavior. Just as any law constrains any power, so international law would constrain U.S. global power: There lies the rub. For Washington, the U.N. exists to expand national policy options, not limit them. The effort to establish an effective, impartial and universal rule of law is precisely the problem, not the solution that one might mistakenly construe from the rhetoric.
The real difficulty could come not with rogue prosecutors as argued by Washington, but with responsible ones. It is easy to imagine circumstances in which the U.S. political atmosphere is too hostile to permit national investigations and prosecutions, and a conscientious ICC prosecutor decides to take up the case. Similarly, the problem may not lie so much with regard to junior- and middle-ranking military personnel as with generals and defense secretaries and even presidents: those with command responsibility, not the foot-soldiers merely carrying out orders.
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