Urges The United States To Join The International Criminal Court
Junius
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...
...20 n DISSENT / Fall 2002...
...I learned recently that the German soldiers sent to Afghanistan as peacekeepers flew there on rented Russian planes...
...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...
...We have submitted American soldiers to the jurisdiction of foreign courts before this—in Japan, Germany, and Italy, for example—so why not to the jurisdiction of an international court that we will have, or could have, a hand in creating...
...Joining would be a signal of what is hardly apparent today: American support for multilateralism down the road...
...Bush's lawyers apparently see these mechanisms only as potential problems...
...Taking a long view, Americans may one day be very happy to see the next hegemon (China, say) constrained by judicial authority...
...The Bush administration exploits this moral ambiguity to argue against multilateral decision making...
...JUNIUS is an occasional contributor to Dissent...
...military or civil court could possibly do...
...So Israelis might well want the United States fighting from the inside to set limits on the Court's politicization...
...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...
...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...
...In fact, we should join the ICC now, even when the risks are not yet (fully) shared...
...The Germans have created a rapid deployment force but have not invested in the means to deploy it...
...In many parts of the world, the Court will be viewed primarily as an instrument designed to set limits on (our) hegemonic power...
...But the administration's argument assumes the permanent unilateralism of American warmaking...
...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...
...Even in well-ordered domestic societies, the judicial process can be politically exploited: think of the role of the Supreme Court in our last election...
...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...
...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...
...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...
...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 DISSENT / Fall 2002 n 19 equipping a modern army...
...And it is entirely certain that there will be efforts to focus prosecutorial energy on Americans abroad...
...George W. Bush's administration is right on that point, and it seems silly to deny it...
...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...
...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...
...And from this beginning, some future U.S...
...The eagerness to invent war crimes will be greatly diminished if war, when it is just and necessary, is a genuinely multilateral engagement...
...The case is similar across Western Europe, in virtually every area of military endeavor...
...As in Afghanistan, the Bush people prefer to be in full charge, acting alone or virtually alone, consulting no one...
...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...
...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...
...How one feels about that depends, I suppose, on one's position in the world...
...Almost every international organization is currently mobilized against Israel, and there is no reason to think that the ICC won't be...
...That's ultimately right, but the argument is more complicated, and there are political as well as legal reasons for supporting American participation...
...Why should we expose our soldiers to this liability when, in fact if not in principle, no other country's soldiers are similarly exposed...
...How can we claim exclusive jurisdiction...
...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...
...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...
...They are happy to bring in allied forces, but only after the fighting is over, to help in peacekeeping...
...air force...
...Consider the bombing of an Afghan wedding party this summer, now under investigation by the U.S...
...Actually, Israel's soldiers will be similarly exposed...
...The Court will, of course, be used for political purposes...
...But liberals and leftists both here and in Europe, it seems to me, should be arguing the other way around: against unilateral warmaking...
...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...
...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...
...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...
...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...
...Wherever the risks of engagement are shared, there is no excuse for refusing to share the legal liabilities...
Vol. 49 • September 2002 • No. 4
