Washington — It's one of life's little ironies that those who most recently objected to the notion of an independent counsel are now angrier than ever that the United States has opted out of the International Criminal Court, which is a kind of global special prosecutor.
Last week, President Bush announced that the United States would no longer consider itself a signatory to the Rome Treaty, which established the ICC. This action was immediately denounced as another unilateral gesture by a government that has already nullified the Kyoto protocol on the environment and the anti-ballistic missile treaty with the (now defunct) Soviet Union. It was a "rash action (that) undermines American leadership and credibility," said the Lawyers Committee for Human Rights.
The Lawyers Committee, I'm afraid, is wrong on all counts. This was not a "rash action." Bill Clinton signed the treaty at the end of his presidency (around the time he was pardoning Marc Rich), and even he said that the treaty is "flawed."
The Rome Treaty was never ratified by the Senate; indeed, it was not even submitted for ratification. As for American leadership and credibility, it all depends on what is meant by such terms. President Clinton signed the treaty in the full knowledge that it would never be implemented so much for credibility and it is the treaty itself, not the Bush administration's reservations, that undermines American leadership.
The Rome Treaty was designed to close what some call a loophole in international law: After the Nuremberg tribunal, no apparatus was established to bring war criminals to justice. Well, everyone agrees that war criminals are bad people and ought to be brought to justice. But what, exactly, is a war criminal, and who decides to bring one to justice?
Last spring, the Paris police delivered a summons to former U.S. Secretary of State Henry Kissinger at his hotel: A French judge wanted to question the 78-year-old Kissinger about U.S. policy in Latin America in the early 1970s. This was not long after the British government had released ex-Chilean dictator Augusto Pinochet after 18 months of detention on a writ issued by a Spanish magistrate. As it happens, the State Department told the French court that such inquiries should be directed to representatives of the U.S. government, not private individuals, and Kissinger left France a free man.
But the episode is emblematic. Not only would the provisions of the Rome Treaty allow any magistrate to claim jurisdiction over any visitor to any country on any pretext you, for example, might be held responsible for American "war crimes" in Afghanistan or Vietnam but it would absolve all states of responsibility for their actions. When an American citizen is arrested in a foreign country, the U.S. government is entitled to petition that government for consideration. Under the Rome Treaty, the only sovereign entity would be the International Criminal Court. The Swedish or Peruvian or Congolese governments would say: Sorry, we're just transporting your citizen off to trial at the ICC; the case is out of our hands.
The Bush administration joined, it should be added, by most countries in the world is rightly concerned that a permanent international war crimes court would be transformed into an arbitrary judge of global behavior with the power to arrest and imprison nearly anyone who comes into view. From the American perspective, this would not only give the ICC the power to act against U.S. attitudes it doesn't like on the death penalty, for instance, or the economic embargo against Cuba but the discretion to press charges or ignore them. In the midst of a global struggle against terrorism, for example, Henry Kissinger would be vulnerable to prosecution but al-Qaida warriors might be exempt.
The problem, of course, is that international law is not like traffic court: Complex problems seldom yield simple solutions. The Nuremberg tribunal worked, to some extent, because the allies exercised sovereign military control in Germany. But Nuremberg also failed to prosecute more Nazis than it punished, and some of the last century's most shocking genocides in Cambodia, China, Ukraine and Armenia will never be tried.
Nuremberg also constituted victors' justice: As Winston Churchill once remarked, if Hitler had won the war, Churchill would be on trial in Berlin for the bombing of Dresden. The ICC envisions a world without basic protections against judicial caprice, or even a global consensus on the meaning of war crimes. As symbols of the world's remaining superpower, United States citizens abroad make an irresistible target for jealous adversaries, ideological foes and arbiters of global morality.