Does International Law No Longer Serve US Interests?
Kenneth Roth is executive director of Human Rights
Watch. He is a former US government prosecutor, an expert in the laws
of war and a long-time observer of the emerging international system of
Justice. This article was prepared for Worldlink.
New York -
In repudiating Bill Clinton's signature on the treaty to establish an
international criminal court, the Bush administration has taken an audacious
step. The move suggests that a radically new vision is guiding American
foreign policy: that the United States, with its extraordinary power,
is no longer served by the international rule of law.
True, US opposition to the court has not, so far, been couched in these
terms. It has tended to focus on the threat that the court might unfairly
prosecute an American-even though "unsigning" the court's treaty
only increases that risk. But behind the Bush administration's decision
seems to lie the belief that the US is above international law. A similar
resistance to international accountability can be found in its rejection
of treaties on climate change, nuclear defense, small arms and biological-weapons
The "unsigning" of the International Criminal Court treaty represents
the clearest triumph yet of this unilateralist ideology. Before this view
becomes entrenched, a debate is urgently needed about whether it in fact
serves America's interest, let alone the world's. For, if the current
trend continues, the US risks finding itself on the wrong side of history.
A FAIR TRIAL | Tyrants commit genocide and other atrocities when
they think they can get away with them. Whereas an ordinary murderer stands
a good chance of ending up in prison, the worst that a despot who murders
thousands usually has to fear is a comfortable exile in some tropical
clime. The ICC attacks this impunity. Since July 1, when its jurisdiction
took effect, anyone who commits genocide, war crimes or crimes against
humanity faces a far greater risk of arrest, trial and punishment.
Most democracies embrace the court as a tool to deter and, if necessary,
to prosecute tomorrow's Saddam Husseins and Pol Pots. The Bush administration
says that it endorses this goal in principle, but objects to the court
because of the remote possibility that an American might unfairly be brought
Admittedly, the US has many enemies who might want to launch an unjustified
prosecution. But the court has numerous safeguards against frivolous cases,
including extensive due-process rights, narrowly crafted crimes, multiple
appeals before independent panels of judges and an emphasis on the worst
atrocities. Most important, governments can block the court's jurisdiction
altogether by investigating and, if appropriate, prosecuting their own
alleged war criminals-exactly what the US says its already does.
Washington claims these safeguards are inadequate but its concerns crumble
under scrutiny. One canard is that the court's prosecutor will be "unaccountable"
to any political body. In fact, the governments that join the court can
remove a prosecutor for misconduct by a majority vote. It is difficult
to conceive of more direct accountability. Since joining the court means
subjecting one's citizens to its jurisdiction, most of the ratifying governments
are democracies-indeed, close US allies. Of course, the prosecutor will
not be accountable solely to the US government, but in the eyes of virtually
everyone but the Bush administration, this is not a shortcoming.
Second, the administration claims that it is unfair to subject Americans
to the court's jurisdiction if the US has not ratified the court's treaty.
But the US would not think twice about prosecuting an Egyptian under an
anti-terrorism treaty without Cairo's consent, or a Colombian under an
anti-drug-trafficking treaty without Bogota's. Similarly, if an American
commits an ordinary crime abroad, the foreign government has every right
to prosecute him, regardless of Washington's views. So if an American
commits an atrocity abroad, the foreign government should also have the
right, without US consent, to delegate its prosecutorial powers to the
ICC. This is well within the bounds of how the world already works.
Third, some argue that the crimes to be pursued by the court are new-fangled
concoctions, offenses thought up by academics and non-governmental organizations
and foisted on the military. In fact, they can be found in the 1945 Nuremberg
charter, the 1948 genocide convention, the 1949 Geneva conventions and
the 1977 protocols to those conventions. In each case, the US was intimately
involved in drafting the treaty, and has either ratified it or considers
relevant parts to be binding customary international law. Some of these
rules do reflect a laudatory evolution in international standards since
World War II-for example, tougher rules on the indiscriminate bombing
of cities-but this has been firmly established for decades.
Fourth, the administration argues that the crimes to be addressed by the
court are too vague or malleable. But these are the same crimes that the
US government requires its own troops to avoid. They have been defined
by international treaties, codified in America's military codes and applied
in criminal courts in the US and around the world for years. They proscribe
not only the use of low-tech arms to commit face-to-face massacres, but
also the use of high-tech weaponry to kill civilians deliberately or indiscriminately
from great heights or distances.
During negotiations over the court, the only crime that worried the Pentagon
was the prohibition of attacks on military targets that cause disproportionate
harm to civilians. It feared that this standard was too subjective to
be applied by an international tribunal. The Pentagon's suggested alternative-that
to be prosecutable the damage to civilians must be "clearly excessive"
in relation to the anticipated military advantage-was adopted word for
Of course, even the simplest rule can encounter difficult cases when its
application is not self-evident. When criminal prosecution is at stake,
the uncertainty of the battlefield usually requires deferring to soldiers'
and commanders' good-faith efforts to abide by international standards.
Certainly, an individual's freedom should not be sacrificed to 20/20 hindsight
or novel interpretations of the law. The ICC's dependence on its members'
backing for everything from its budget to the arrest of suspects will
tend to reaffirm this conservative direction. But deference to good-faith
military judgments in close-call cases is quite different from the abdication
of review that the Bush administration advocates.
In short, the rules for a fair tribunal are in place. The task now is
to ensure that they are conscientiously applied. That will depend on the
quality of the judges and prosecutor, as well as on the culture of the
Even without ratifying the court's treaty, the Bush administration could
have had a positive influence on such matters by engaging with the court
and offering advice on rules, personnel, procedures and prosecutions.
Close US cooperation with the international criminal tribunals for Rwanda
and the former Yugoslavia has helped to build fair and sober institutions.
That was demonstrated, for example, when the prosecutor for the Yugoslav
tribunal correctly refused to accuse NATO of war crimes in the politically
charged matter of the bombing of Yugoslavia. (NATO had violated international
humanitarian law, but these violations did not rise to the level of war
crimes, despite exaggerated charges by the Yugoslav government and its
supporters.) Rather than promote an academic or "progressive"
view of the law, the tribunal rightfully kept its analysis within broadly
With these advantages of engagement in mind, President Clinton signed
the court's treaty in December 2000. By effectively "unsigning"
the treaty in May 2002, the Bush administration squandered that influence
and gained nothing in return. Unsigning has not delayed the court's creation
or limited its prosecutorial reach. Already, 76 governments have ratified
the treaty-well over the 60 needed to launch the court-and many more are
near ratification. If a US soldier commits a war crime or atrocity in
the territory of the government that has ratified the treaty, the US will
still face the choice between conducting its own investigation (and, if
necessary, prosecution) and risking the court's jurisdiction.
Repudiating the court is also likely to impede the US-led anti-terrorism
campaign. Washington is asking its allies around the world to cooperate
in law-enforcement efforts to track down terrorist suspects. But the administration
can only alienate these allies when it opposes a landmark law-enforcement
institution for similarly severe crimes. Nor does the administration encourage
governments to help it with peacekeeping in Afghanistan when it threatens
to destroy peacekeeping elsewhere unless troops are exempted from the
ABOVE THE LAW? | Why, then, did Washington take this costly step?
The Bush administration has put forward several justifications, but none
holds water. The most common cites America's unique responsibility for
international security. Because of the extraordinary size and sophistication
of its military, the US does indeed bear a special security burden. But
only the most ardent unilateralist would suggest that this responsibility
should give it a license to commit war crimes. Besides, the US is hardly
the only government with troops deployed in dangerous war zones. American
personnel are a tiny fraction of UN peacekeeping troops, yet other contributing
governments accept that, especially when acting in the name of global
security, adherence to global standards is essential.
Sometimes the administration cites fears about misuse of the crime of
"aggression," which, if seven-eighths of its members can agree
on a definition of it, the court will be able to prosecute after seven
years. Washington claims that this power could be politicized and will
infringe on the UN Security Council's authority to declare an act of aggression.
But the court's treaty requires any definition of aggression to be consistent
with the UN Charter, meaning that it must preserve the Security Council's
role. Washington will thus be able to veto any inappropriate allegation
Another US objection is stated in humanitarian terms: The Pentagon will
be reluctant to come to the aid of people in need if it fears unjustified
prosecution. But the Pentagon did not think twice about launching bombing
campaigns in Bosnia in 1995 and Yugoslavia in 1999, even though this subjected
US soldiers to the risk of prosecution by the international criminal tribunal
for the former Yugoslavia. If anything, that tribunal posed greater risks
than the ICC: It has primary jurisdiction over any crime it chooses to
pursue-that is, it can take a case even if national authorities want to
prosecute the matter-whereas the ICC has only secondary jurisdiction,
allowing it to address a crime only if national authorities do not.
The only thing that has changed since the Bosnian and Yugoslav bombing
campaigns has been the administration in Washington. The Clinton administration
was willing to live with the small risk of prosecution because it saw
international justice as an essential tool for addressing atrocities such
as those of Slobodan Milosevic. The Bush administration, by contrast,
has allowed its ideological aversion to international justice to prevail.
Once one peels away the Bush administration's various excuses and rationalizations
for opposing the ICC, a more disturbing explanation is left. The administration
apparently believes that, given the US' extraordinary power, the rule
of law no longer serves the national interest. Usually, the administration
speaks only in terms of not wanting foreign judges to second-guess US
military actions. But since no modern conception of justice allows for
exempting the most powerful, the administration's view is really an attack
on any rule of law in international relations.
The administration correctly observes that Washington can usually get
its way on any specific issue through arm-twisting. Why, then, bind the
US by international law that might bring about results that are inferior
to what Washington could have negotiated on a case-by-case basis? The
problem with this reasoning is that no effective global order can rest
solely on coercion. Every nation-even a power as dominant as the US is
today-benefits from a global order in which most governments abide voluntarily
by shared norms, whether of commerce, democracy or peace.
Until the arrival of the Bush administration, Washington seemed to understand
the importance of promoting such values as respect for human rights and
the rule of law, as well as building US military power. Responsible leadership
was given as much priority as power. But the Bush administration, intoxicated
by America's unparalleled might, sees little reason to continue submitting
to international standards. Its vision of unbridled American latitude
is shortsighted. Rejecting American accountability undermines the rule
of law and leaves only a system of coercion. That radical vision does
not serve America's interests, and it certainly does not serve the world's.
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