In Defense of Multilateralism
The argument seems easy: the International Criminal Court represents a significant step toward a global rule of law, and the United States should be part of it. That's ultimately right, but the argument is more complicated, and there are political as well as legal reasons for supporting American participation.
The Court will, of course, be used for political purposes. George W. Bush's administration is right on that point, and it seems silly to deny it. Even in wellordered domestic societies, the judicial process can be politically exploited: think of the role of the Supreme Court in our last election. In international society, where the rule of law is still a distant dream, politics is almost certain to determine the early course of the ICC. And it is entirely certain that there will be efforts to focus prosecutorial energy on Americans abroad. In many parts of the world, the Court will be viewed primarily as an instrument designed to set limits on (our) hegemonic power. How one feels about that depends, I suppose, on one's position in the world. Taking a long view, Americans may one day be very happy to see the next hegemon (China, say) constrained by judicial authority. But the debate about the ICC offers liberals and leftists a chance to argue for something more than this: not a constrained but a shared hegemony.
The current American position goes something like this: when war is just and necessary, as in the Gulf in 1991 or in Kosovo in 1999, it is the United States that bears the brunt of the fighting. Our European allies oppose American unilateralism only this far: they want a role in deciding when war is just and necessary, but they are content, once the decision is made, to leave most of the fighting to American soldiers. Americans are supposed to accept the risks of war (and are criticized, sometimes rightly, for fighting at long range so as to reduce those risks), and we are also supposed to accept the legal liabilities. It is American soldiers, and hardly anyone else, who will be accused of war crimes and they will be accused both when there are legal reasons to think that crimes have been committed and when there are political reasons to pretend that crimes have been committed. Why should we expose our soldiers to this liability when, in fact if not in principle, no other country's soldiers are similarly exposed?
But the administration's argument assumes the permanent unilateralism of American warmaking. As in Afghanistan, the Bush people prefer to be in full charge, acting alone or virtually alone, consulting no one. They are happy to bring in allied forces, but only after the fighting is over, to help in peacekeeping. And America's allies are not in fact unhappy about this role, whatever they say about it, because it frees them from the expense of raising and equipping a modern army. I learned recently that the German soldiers sent to Afghanistan as peacekeepers flew there on rented Russian planes. The Germans have created a rapid deployment force but have not invested in the means to deploy it. The case is similar across Western Europe, in virtually every area of military endeavor. This means that the Europeans are in the morally ambiguous position of claiming a role in decision making while remaining unready to share in the risks of decisions made. The Bush administration exploits this moral ambiguity to argue against multilateral decision making. But liberals and leftists both here and in Europe, it seems to me, should be arguing the other way around: against unilateral warmaking. We should seize the occasion of the ICC debate to insist that the best way to avoid exposing American soldiers to political prosecutions is to make sure that European (and other) soldiers are similarly exposed. The eagerness to invent war crimes will be greatly diminished if war, when it is just and necessary, is a genuinely multilateral engagement.
This requires that European countries (and others too, but right now the NATO states are the relevant ones for this discussion) be ready to send soldiers into battle. Americans and Europeans will have to argue about when to do that, but the readiness to do it is a moral necessity. If there is to be equal liability in the courtroom, there has to be equal risk on the battlefield. I don't understand how Europeans can be so outraged at America's refusal to join the Court when they are so unwilling to join the battle. On the other hand, the Bush administration invites the outrage by its refusal to join even in peacekeeping efforts (in Bosnia, as I write) where multilateral engagement and multilateral liability are already in place. Wherever the risks of engage ment are shared, there is no excuse for refusing to share the legal liabilities.
In fact, we should join the ICC now, even when the risks are not yet (fully) shared. Joining would be a signal of what is hardly apparent today: American support for multilateralism down the road. And meanwhile, in addition to constraining American hegemony, the court will also set up mechanisms useful to everyone, Americans included, for conciliation and reparation in cases of injury and criminal action. Bush's lawyers apparently see these mechanisms only as potential problems. In fact, however, we will greatly enhance the legitimacy of our military operations in foreign countries if we acknowledge the possibility of external judicial review. Consider the bombing of an Afghan wedding party this summer, now under investigation by the U.S. air force. This is an example of warfare from a great distance, with very low risk for the American pilots involved but high risk, apparently, for civilians on the ground. How can we claim exclusive jurisdiction? The ICC could bring a just closure to cases like this (if anything like criminal negligence is involved), in a way that no U.S. military or civil court could possibly do. We have submitted American soldiers to the jurisdiction of foreign courts before thisin Japan, Germany, and Italy, for exampleso why not to the jurisdiction of an international court that we will have, or could have, a hand in creating?
And from this beginning, some future U.S. administration could pursue a fuller multilateralism, insisting that other countries involve themselves seriously and substantially, along with us, in the risks of humanitarian interventions, just wars, and international peacekeeping.