Today's date:
Fall 2002

International Law Is Not Enough to Stop Aggression

Ruth Wedgewood is a professor of international law at Yale and Johns Hopkins universities. She is a former federal prosecutor and a member of the secretary of state's advisory committee on international law. This article was prepared for Worldlink.

Washington - The impasse between the United States and its European allies over the role of the International Criminal Court reflects a number of reinforcing trends. These long-standing problems explain why a compromise has not yet been struck, and why the differences must instead be managed.

The US and Europe play different roles in world security. Europe has embraced a "human security" agenda that aims to mitigate the costs of warfare to civilians. Humanitarian campaigns against landmines, child soldiers and other hazards of warfare reflect admirable ideals that are easy to embrace on a continent that has been at peace for 50 years. Yet Europe has not invested in the military capacity needed to deter aggressors in other regions. The US, by contrast, supplies strategic balance in far-flung places such as northeast Asia-protecting Taiwan, policing North Korea and safeguarding Japan. In the Middle East, south and even central Asia, the US provides the mix of coercion and deterrence that is often necessary for international stability.

The age-old lesson, learned in the 1930s and again in the 1990s, is that law and international assemblies are not enough to stop aggression. The tragedies in Bosnia and Rwanda confirm that rhetoric and resolutions do not prevent genocide. Democratic states must be willing to invest in the necessary military capacity and take the unwelcome risks of confronting miscreant actors. Europe and others have contributed to peacekeeping and policing, but America has often been left with the heavyweight task of peace enforcement.

A UNIQUE RESPONSIBILITY | America's special role means that the ICC may affect it differently: only the US has troops stationed abroad in large numbers. They are typically deployed at the invitation of host countries that feel more secure with their presence. The US acts as a useful "balancer" in many regions where there is an unsteady assortment of midsize powers and the ability to call on a policeman of last resort deters errant behavior.
It is hardly surprising that the US government should worry about the unique exposure of American troops overseas to the jurisdictional claims of a criminal court, especially since a half-century of careful bilateral "status-of-forces" agreements have entrusted military prosecutions to the sending state.

Second, the US is called on to undertake military tasks that require technology or resources that other states lack. Air operations are often conducted with, at most, one or two other capable allies. This is not irksome in itself, but it means that other states may not share the same concerns about the problems of conducting such campaigns.

Third, the US is directly interested in the many unresolved debates about military doctrine and rules of engagement. These are advanced through discussions among allies, including military lawyers and humanitarian organizations. US military commanders have to plan how conflicts can be managed with minimum civilian casualties. Targeting choices and strategies are rigorously assessed for their impact on civilians. Legal advisers also help theater commanders plan their operations in a way that advances humanitarian standards. Humanitarian law engages humanitarian workers, academic lawyers and military personnel in an ongoing conversation. Even so, real life does not always live up to "best practice." Accusation can serve as a form of politics, and good-faith differences in doctrine may be escalated into a rhetoric of "crimes" and "violations."

This escalation is especially troublesome because the law of war is often indeterminate. The legal regime includes both "bright-line rules," where there is little ambiguity, and harder-to-apply "principles," where the right answer is more difficult to discern. "Geneva" law-the conventions protecting persons who are hors de combat, such as prisoners of war, wounded in the field and civilians in occupied territory-is characterized by bright-line rules. "Hague" law deals with the battlefield, where the fog of war can make things unclear and difficult decisions must be reached in conditions of great uncertainty.

Even where the abstract principles seem clear, their application can be agonizing. For example, a fighting force is never allowed to target a civilian object. But how should "dual-use" facilities-such as electrical systems that power anti-aircraft guns or oil depots that fuel armored divisions-be classified? After all, they may also run water-purification plants or heat public schools. No consensus exists over whether they should be considered military or civilian objects. Similarly, the principle of proportionality requires that the value of a military tactic be weighted against the incidental harm that it causes to innocent civilians. But this is a question of balancing and is open to second-guessing. The wise application of proportionality requires military expertise about alternative tactics, as well as an assessment of the urgency of the military campaign.

That is one reason why trying crimes of war has traditionally been entrusted to military tribunals. Nuremberg was a military tribunal, and the third Geneva convention gives prisoners of war the right to demand a military forum, on the supposition that assessing battlefield standards may require some expertise. Only in the past decade, with the ad hoc tribunals for Rwanda and the former Yugoslavia, have civilian courts been employed, and this where the evidence of genocidal massacres is clear-cut. (Even so, they face some challenging questions: for example, whether a military commander should be held criminally responsible for failing to prevent the misconduct of police and paramilitary forces that do not operate under his direct command.)

There is a familiar habit in international law of using judicial institutions to "progressively develop the law." The tendency has recently become more pronounced; some have even suggested that state practice and consent are no longer central to international lawmaking. This is a wayward view. Although non-governmental organizations play an important role in education and reporting, they cannot supplant sovereign states' crucial role in forming law, especially where states have a special responsibility to assure their citizens' safety. The dilemma for a state with an active role in international security is that a court may be tempted to "develop" the law in disregard of state practice and at the expense of American soldiers.

Criminal law has its own set of ethical norms, including the "rule of lenity" and an ideal of transparency. It would be unfair to use spring traps to criminalize activities that are traditionally considered lawful. The law of armed conflict is now often called "international humanitarian law." The understandable concern for a democratic military is that well-meaning people-whether law-school professors, criminal-court judges or trial litigators-may have little understanding of the exigencies of military operations. This was less of a problem in the ad hoc tribunals for the former Yugoslavia and Rwanda created by the UN Security Council in order to apply "Geneva" law against massacres-to punish the shocking and extreme tactics used in Bosnia's ethnic cleansing and the Rwanda genocide. But close-call judgments on good-faith military tactics belong in a different locale-within alliance politics, military treatises, in ethical debate, and not in a criminal court looking for work.

To be sure, there are plenty of Bosnian-style outrages to occupy the docket of a permanent court. A standing structure to apply "massacre" law is, indeed, what the US had in mind when it embarked, in good faith, in the ICC negotiations. But some proponents see the permanent court as a forum to transform the law of armed conflict and advance an agenda that might ban most methods of modern conflict.

The claims arising out of the NATO air campaign in Kosovo are a case in point. NATO needed to stop the ethnic-cleaning campaign mounted by Slobodan Milosevic against Kosovar Albanians. Its Cold War equipment was designed for a war against the Soviet Union, not humanitarian intervention. The attempt to adapt existing weapons systems to this new task met with searing critiques. Yugoslavia charged that it was a crime to disable targets such as oil depots and electrical systems, use anti-personnel cluster bombs to interrupt the operations of Serb paramilitaries or employ uranium-tipped munitions to penetrate the thick skin of Serb tanks. Yugoslavia also said it was a crime to attack the bridges over the Danube, even though this crucially limited the Serbs' flexibility to move tanks north of the river to meet a land invasion through Hungary or south to attack the Kosovar Albanians.

On each of these questions of military strategy and policy, a spirited debate on "best practices" and possible alternatives is appropriate. But the civil lawsuit attempted by Yugoslavia in the International Court of Justice-the only form available in 1999-instead used the political device of charging that NATO was guilty of war crimes in each of these choices.

Supporters of the court argue that the ICC could not be used to penalize responsible democracies because they will have the opportunity to prosecute any crimes in their own national legal systems. The international court is only to intervene where a national legal system is "unwilling or unable genuinely" to prosecute a matter. But this offers no protection in the case of good-faith differences in military doctrine. The US would not prosecute a fighter pilot who faithfully carried out his orders to attack and disable a dual-use electrical facility, but this would not prevent the ICC from prosecuting him.

AGGRESSIVE JUSTICE | The ICC has also been tasked to act against "aggression." There was no doubt about the nature of the Nazi invasions in 1939, but many modern aspects of the law governing resort to force are in flux. Some believe the 1945 UN Charter forbids any unilateral use of military force except in self-defense against an armed attack. But the UN Security Council is often stymied by the threat of vetoes and many think the Charter also permits other uses of force, including in "anticipatory" self-defense and humanitarian intervention. In the current war against terrorism wreaked by non-state-actors who threaten to use weapons of mass destruction against civilians, a doctrine of "preemptive" self-defense may even be necessary. These matters of life and death-and national security-could be usurped by the ICC.

To be sure, a super-majority of member states must agree on an abstract definition of aggression before a crime can be charged. But the devil is likely to lie in the details of a particular application of this broad norm. To many, it is inconceivable that one would give to a court the ultimate authority over the right to defend a society under threat. Current proposals would allow the ICC to charge aggression even where the UN Security Council-the political body charged with maintaining international peace and security-has failed to reach a decision. This is a fundamental reworking of the UN's constitutional structure and would block the law's evolution in ways that many states may find essential for the protection of their people.

In the waning hours of the Rome negotiations over the ICC in 1998, these key US concerns were rebuffed. The request for an adjournment to work out the problems was scoffed at. In the following two years of negotiation on implementing rules, American attempts to secure compromise language to allow a "look-over" period were also tabled.

Despite these unresolved problems, Bill Clinton chose to sign the ICC treaty in the final hours of his presidency, even while noting that he had no intention of sending the treaty to the Senate for ratification. On May 6, after nearly four years of post-Rome stalemate, the Bush administration notified the UN secretary-general that the US did not intend to become a party to the treaty. This heralded "unsigning" does not preclude later referrals of massacre cases to the court from the Security Council and does not interfere with other countries' right to join the court. But it does signal the American position that a treaty-based court cannot exercise jurisdiction over American troops without the consent of the US.

Rather than hurling brickbats, proponents of the court should work to assure that the court uses sensible principles of prosecutorial discretion, focusing on the outrages of genocide and massacres, rather than on contentious debates about military doctrine. They should seek to ensure that its judges and prosecutors include lawyers with military experience, to create confidence that the ICC can understand the difficulties of military targeting and battlefield decisions. The court ought also to refrain from distorting the boundaries of treaty law and decline to exercise jurisdiction over the nationals of countries that have not ratified the treaty, except when the Security Council has referred a case to it.

Most important, those who wish to see the ICC succeed should refrain from making it the stage for campaigns against the asymmetry of the modern security architecture. The Cold War is over, but World War II is not. The US did not seek its special security role. But given lingering historical suspicions among neighbors in many regions, America's unique role as a guarantor of security has continued for want of a more reliable arrangement. It would be unworthy to distort a judicial institution into a political proving ground.

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