Saying no to a bad idea (Scripps Howard News Service) May 9, 2002

When 66 nations and hundreds of nongovernmental organizations celebrated the creation of the new International Criminal Court at the United Nations last month, the chair of the United States delegation was empty.

Just to be sure the message was clear, the State Department delivered a letter to the United Nations this week stating unequivocally that the United States did not intend to participate in the court or be bound in any way by it. What many experts call the most important international institution since the United Nations now moves ahead without the most powerful nation in the world. It is an important moment, ripe with implications.

The major supporters of the court — Canada, members of the European Union and many nonprofits and foundations — have been quick to criticize the U.S. position. One group said it “signals to the world that America is turning its back on decades of U.S. leadership in prosecuting war criminals.” Refusal to participate in the court has been described by some as further evidence of increasing U.S. isolation in the world.

The truth is that the proponents of the court intentionally created an institution that the United States could not support. The United States, which has backed every international criminal tribunal, from Nuremberg and Tokyo following World War II to Rwanda and the former Yugoslavia today, was actively involved in helping develop a permanent court. The United States worked closely with the International Law Commission and others to follow customary international legal principles in creating a court of limited and defined jurisdiction.

But a funny thing happened on the way to the International Criminal Court. A small group of highly committed “like-minded nations,” aided by foundations and nonprofit organizations, developed a concept for a court of much wider jurisdiction and greater powers than ever before conceived. These groups, who do not traditionally lead the development of international law, hijacked the process and moved it onto a fast track. The United States, and other countries, were then presented with a “take it or leave it” plan for a sweeping new court.

The United States is right to be concerned about this new world court. The court’s agenda not only includes the expected war crimes, crimes against humanity and genocide, but it adds a new, undefined crime of “aggression.” With more troops stationed abroad than any other nation, the U.S. military is an obvious target for the court. Rather than the U.N. Security Council referring cases to the court, those highly political decisions will be made by an independent prosecutor. Most amazing, the court purports to have universal jurisdiction, even over citizens of states that do not sign the treaty. These are all huge leaps from traditional international law, and from early proposals for the court.

Do not be surprise when American officials are investigated or even charged by the court. Despite this clear notice that it will not be part of the court, U.S. government officials, military officers and soldiers, even corporate executives, could all be investigated and charged under the court’s exceptionally broad jurisdictional provisions. If this seems farfetched, consider that efforts have been underway for years to bring former Secretary to State Henry Kissinger before a foreign or international court for actions committed during the Cold War.

Of equal concern is the process by which the court was created. Although it is call an “international” court, ony 66 states of the approximately 190 nations in the United Nations have ratified it. Major powers like the United States, China, India, Japan and Russia are not taking part. In fact, outside of Europe and Africa, very few regions of the world are well-represented among the founders of the court. It is certainly possible that this court, which purports to have universal jurisdiction, will be created by fewer than half the nations of the world, possessing less than one-fourth of the global population.

The U.S. letter delivered this week was, on the surface, largely a legal and symbolic matter, reaffirming the U.S. position that had been known for some time. In another sense, it signals the U.S. unwillingness to be maneuvered by these small and medium-sized European states, and the many nongovernmental organizations, which have their own agenda for the world. It is not an agenda that will serve America well. Yet without the participation of the United States, China, and other world powers, it may not effectively serve anyone.