International Law Is Not Enough to Stop
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.
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
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
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
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
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
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
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
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