In July 1998, at the end of the most blood-soaked century in human history, the nations of the world gathered in Rome under the auspices of the United Nations and voted to establish an International Criminal Court (ICC). This new tribunal, to be located permanently at the Hague, would be empowered to investigate, charge, and convict any person in the world who had carried out “genocide, crimes against humanity, war crimes, [and] the crime of aggression.” With the announcement of the agreement, UN Secretary General Kofi Annan proclaimed that the court would be “a gift of hope to future generations and a giant step forward in the march towards universal human rights and the rule of law.”

On the face of it, the ICC sounds like a good idea. But there is a problem with it: The idea of an international court empowered to try the citizens of various countries without their governments’ consent is a systematic challenge to state sovereignty, the central principle on which the present international order rests. Not surprisingly, this is an idea that fits well with the agenda of the European Union, which is increasingly committed to undercutting the sovereign powers of independent states and transferring these powers to international institutions—and preferably to those located in Europe. This idea has proven more difficult to swallow for another group of states, which have a clear need to maintain their national independence and sovereignty in the face of European wishes to the contrary—including the United States, Great Britain, Russia, India, and Israel, to name a few.

It was not until the terror attacks on New York and Washington a year ago that it began to become clear that the United States, which now has a war to fight, would not go along with the court, and in recent months President Bush has made disabling the ICC a foreign policy priority. In May 2002, the Bush administration announced it was withdrawing America’s signature from the Rome statute, and in July the U.S. threatened to veto all future UN peacekeeping missions unless American soldiers were guaranteed immunity from prosecution. Over the summer, the administration launched a campaign to sign bilateral treaties with as many countries as possible committing the parties not to extradite one another’s nationals to the ICC. To give this position the force of law, Congress passed the American Service-Members’ Protection Act, which bans all government cooperation with the ICC, makes illegal any efforts to conduct or offer material support for its investigations, gives the president authority to deny military aid to any country refusing to sign a non-extradition treaty with the U.S., and even authorizes him to use “all means necessary” to free Americans held for trial by the court.

The Europeans, however, have not backed down. Having reached its statutory threshold of 60 ratifying states, the ICC officially opened for business on July 1, 2002, and its jurisdiction now extends to over 80 countries. Comprising 18 judges and an independent prosecutor, the new court will have the power to issue warrants, subpoena witnesses, and obligate member states to turn over evidence. The ICC, which is likely to begin hearing cases as early as next year, is now a fixture of the international landscape.

Instead of uniting humanity, however, the International Criminal Court has succeeded in doing the opposite. It has, in effect, created a new dividing line in the global arena between two competing conceptions of world order. On one side are those countries willing to cede significant aspects of their sovereignty by placing themselves under a world legal framework dominated by Germany, France, Belgium, and the Scandinavian states; on the other are those nations, led by the United States, that continue to see sovereignty as the principal bulwark for national freedom and international stability.

Where should Israelis and Jews see themselves in this nascent clash of civilizations? A sober assessment of the court’s powers and composition reveals that it is the Americans, not the Europeans, who have it right. The ICC is almost certain to become just as politicized as the many other international bodies created in a similar spirit over the past half century. Unlike those institutions, however, the ICC will enjoy wide powers of legal coercion that will make it a menace to democratic states seeking to defend themselves, and its presumptive superiority over elected national institutions will make it a threat to some of the fundamental principles on which free government is based. For democracies everywhere, accession to the Rome treaty represents a step backwards for accountable self-government and the rule of law. For small, embattled democracies like Israel, the results might be far worse.

 

To understand the problems posed by an International Criminal Court, it is important to recognize that this tribunal is nothing at all like ordinary courts operating under the rule of law. In the latter case, the aim is to enable human affairs to be guided by principles of right and wrong rather than the dictates of naked power—to keep man from “eating his brother alive,” in the words of the Mishna. But since there has never been a society in which all citizens were fully dedicated to lawfulness, the rule of law presupposes the creation of an effective means of enforcement: Strict limits must be put on the power individuals can wield over one another, all “vigilantism” must be delegitimized, and the use of force must be invested in a central body charged with enforcing the law equitably. If the power of the state to investigate, convict, and punish offenders is consistently applied, individuals will be deterred from trying to impose their will on one another, and will generally resort to more peaceful means. If not, they will quickly conclude that their justice system is inequitable, ineffective, or corrupt; instead of figuring out how to live by its rules, many will spend their energies seeking to be among those who act with impunity. For the rule of law to have any meaning, then, the presence of a court alone is never enough: Equally indispensable are a governmental structure that puts overwhelming powers of enforcement behind efforts to punish wrongdoers, and a system of accountability in which these bodies are inclined to carry out their duties as fairly and consistently as possible.

In the international arena, none of this exists. Although many scholars of international law are loath to admit it, it is impossible to speak of an equitable “rule of law” among nations. If only some “war criminals” are prosecuted while others are not, the question of who will be tried will be answered not by a roll of the dice, but according to the dictates of power politics: Which countries feel like furnishing evidence against a leader accused of war crimes, which will be willing to send their own soldiers to battle in order to oust him from power, which will agree to keep him in prison after his conviction. Ample proof of this was provided by the spotty record of the International Criminal Tribunal for the former Yugoslavia (ICTY)—a temporary court set up by the Security Council in 1993 to arrest and try war criminals in the Balkan conflicts. Though the purported success of this body was a major catalyst for creating the ICC, an account by Chuck Sudetic in the April 2000 issue of The Atlantic Monthly documented how French soldiers in Bosnia, anxious to protect their government from revelations of French wrongdoing that could come out during a high-profile war-crimes trial, systematically scuttled attempts to arrest even the most wanted Bosnian Serb leaders hiding in French-controlled territory. Such an outcome is no surprise, of course, given the way international tribunals like the ICTY and the ICC are built. So long as they are dependent on state enforcement agencies for their effectiveness, international criminal law remains the rule of power under the guise of principle.

At the same time, everything in the ICC’s makeup points to its subordination to the interests of power politics rather than genuine law. The most important decisions regarding the court, such as the appointment of its judges and prosecutor, the funding for its operations, and any amendments to its constitution, are in the hands of the Assembly of States Parties, in which every state that has ratified the treaty is entitled to one vote. At present, given the limited membership of the Assembly, its decisions are likely to reflect the views of the European states that dominate it—which have shown themselves increasingly willing to use the banner of human rights in order to attack democracies such as the United States and Israel, while at the same time ignoring far more serious abuses by other nations. As Jeremy Rabkin of Cornell University, a scholar of international law and one of the ICC’s leading critics, argues in an upcoming issue of the Lieden Journal of International Law, such political considerations are likely to have a direct effect on the court’s agenda:

Of course, if many more nations ratify the Rome treaty, giving full representation to the world’s oppressive and lawless regimes, the politics of the Assembly of States Parties will cease to look like that of an expanded European Union and come to resemble that of the UN’s General Assembly—a body that was also created in the interests of promoting justice among the nations, but which, because it gives equal standing to tyrants as to lawful democracies, has long since deteriorated into a euphemism for hypocrisy and moral ineffectiveness.

And yet, there is one crucial difference between the ICC and the General Assembly. The designers of the United Nations understood the dangers inherent in a “democratic” international body, and therefore left all effective power in the hands of the sovereign states themselves, or, in exceptional cases, in the hands of the Security Council. The ICC, by contrast, will have the authority to demand the full cooperation of all member states. According to the Rome statute, all ratifying countries will have to hand over documents and information, arrest and extradite suspects, and provide witnesses if requested to do so by the court. According to Article 72, a state that believes divulging top-secret intelligence or forcing a high-clearance witness to testify would compromise its national security can petition the court to that effect—but the court, if unconvinced, can still “order disclosure; or, to the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.” Moreover, while jurisdiction is limited to crimes committed against the citizens of ratifying states or in their territories, there is no such limitation on the nationality of the alleged perpetrator, and therefore no person on earth is immune from prosecution—which means that if the court should feel like taking advantage of an American official’s visit to London to issue a warrant for crimes allegedly committed by American troops operating in a member state, Britain would be obligated to arrest him and ship him to the Hague for trial.

Despite the court’s inevitable politicization and its remarkable powers to brush aside the sovereign rights of states, its supporters maintain that it is still an important step forward in the struggle for international justice, since the very threat of punishment might succeed in preventing some war crimes from happening. As former U.S. President Jimmy Carter told CNN in April 1998, “Just knowing that the international criminal court is there, I think, would be a great deterrent among those who might be inclined to perpetrate these kinds of crimes.” Perhaps “good” states should be willing to give up on some of their sovereign rights, the reasoning goes, if the fear of prosecution will lead the “bad” ones to stop the killing.