Justice For All

Human history just took a momentous step forward, but sadly the United States may have been left behind.

Earlier this month, 10 countries ratified the 1998 Rome Protocol establishing the first-ever International Criminal Court (ICC). This brings the total number of ratifying nations to 66, six more than the 60 required for the court to come into existence. As many as 139 countries have signed the treaty, which calls for the creation of a permanent tribunal to deal with those accused of war crimes, crimes against humanity, and genocide. The court will be formally established on July 1 in The Hague.

Ad-hoc tribunals have been created before to try those accused of war crimes – most memorably in Nuremberg against the Nazis and most recently in the Hague against former Yugoslav leader Slobodan Milosevic. But the court will be the first permanent body set up specifically to try those responsible for crimes against humanity. The establishment of the ICC will mark a historic step toward building a global criminal-justice system and instituting a universal legal code.

Unfortunately, it is highly unlikely that the United States will join the ICC any time soon.

In December, the Senate (which must ratify the ICC treaty to establish U.S. participation) voted 78-21 for a law that unilaterally exempts US armed forces from prosecution by the Court. Titled the American Service-members' Protection Act, the bill authorizes the use of military force to gain the release of any U.S. or allied personnel detained or imprisoned by the court. The proposed law is so outrageous that some critics have dubbed it "The Hague Invasion Act."

Just as outrageous is the Bush Administration’s public admission that it is considering "unsigning" the ICC treaty, which President Clinton signed before leaving office. This is a frightening prospect. No president has ever revoked the signature of a former chief executive on a treaty. If the White House takes this unprecedented action, it will signal to countries around the world that it is acceptable to withdraw from treaties that they find inconvenient or burdensome. The "unsigning" would shake whatever global confidence remains in United States’ commitment to abide by international norms.

Some of the opposition to the ICC is based on procedural concerns, while other lawmakers oppose the court on ideological grounds. The first set of anxieties is unwarranted and the second short-sighted.

Some senators fear that the ICC would trump national courts – an outcome that is highly unlikely. The ICC jurisdiction would be complementary to U.S. courts. National governments would still have the primary responsibility to prosecute the most serious international crimes, and the ICC would step in only as a court of last resort.

Some lawmakers have also complained that the Court could be used to launch "political" prosecutions. But the ICC has many checks and balances built into the process designed to prevent such actions. Prosecutors could not start an investigation without permission from a pre-trial chamber of three judges. And the suspect and the nations involved also have the right to challenge investigations conducted by the prosecutor. They can also challenge the jurisdiction of the court or the admissibility of the case at the trial stage.

But aside from these narrow – and unfounded – procedural concerns, some senators and the White House oppose the court for ideological reasons. These critics – who are either go-it-alone unilateralists or stay-at-home isolationists – fear the court will undermine U.S. sovereignty. But given our desire to end terrorism worldwide, the aversion to international cooperation is self-defeating. How can the Bush administration and a majority of the U.S. Senate turn their backs on a new institution best-equipped to bring to justice criminals like those responsible for the Sept. 11 attacks. And do so even as we ask other countries to assist us in isolating and arresting terrorists?