Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

U.S. Shortsightedness on the ICC

James Skillen


July 15, 2002

President Bush and many in Congress are making a serious mistake in withholding American membership from the new International Criminal Court (ICC). The outcome could be truly self-defeating—the opposite of what they want.

The ICC, located in The Hague, is the fruit of long negotiations, with U.S. participation, to establish a permanent court for the prosecution of those who are not brought to trial in their own countries for committing genocide and other grievous crimes against humanity. As an international organization the ICC represents the same tension that is built into most other such entities, namely, the goal on one side to establish the rule of law above nations and on the other side the aim to uphold the sovereignty of independent nations.

In the course of the negotiations, U.S. representatives raised the legitimate concern that American soldiers engaged in peacekeeping responsibilities would be at greater risk than those of other countries of being accused of war crimes. Those fears were thoroughly addressed and the treaty was revised accordingly. For example, the ICC will have no authority to take on cases handled by national courts, nor may it begin a trial before a pretrial chamber has shown that there is a reasonable basis for action.

Nevertheless, in the end the Bush administration has decided to draw back from the international agreement and to put all of its huge weight on the side of looking after its own sovereignty. In this instance, as in other recent ones, the U.S. has all but thumbed its nose at those nations, including all of its European allies, who want to strengthen the international rule of law.

The first thing that is perverse about this action is that it contradicts the very principles that Americans say they stand for. If the rule of law and equal treatment under the law should be universal, then the United States cannot ask others to do what it will not do. By insisting on its sovereign independence without also working to strengthen international law, the U.S. says that for those with great power, international law is merely a tool to enhance their own power. When American leaders decide that the United States is too important to subject itself to international rule-of-law processes, all future rule-of-law talk will be understood by others as either hypocritical or as a cover for the promotion of American interests.

The second mistake in this decision is its lack of realism about balance-of-power politics. The U.S. is now dominant throughout the world, the only superpower, a military and economic colossus. But what always happens when dominant powers become a growing threat or aggravation to others? Those threatened begin to cooperate to overcome the power imbalance. Of course, no one need worry that Europeans tomorrow or China next year will be able to tip the balance. But the anger, frustration, and disgust being expressed by more and more countries at American unilateralism will lead eventually not to the enhancement of U.S. sovereignty but to its weakening.

Don't be surprised, therefore, when you see fewer and fewer allies and former allies cooperating with us on anything that is of primary interest to the U.S. Don't be surprised to find other nations banding together in new ways to thwart U.S. interests as they work to leverage their own. And don't think for a moment that U.S. military spending will ever go down again. Trying to protect American interests around the globe with diminishing help from allies and with rising fears at home will eventually drain and demoralize even the mightiest empire. It has happened before.

U.S. refusal to be part of the ICC reflects a misunderstanding of the way the world works and contradicts the fundamental principle of governments under law. President Bush and Congress should reverse course now.

—James W. Skillen, President
    Center for Public Justice


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”