Why Does the United States Continue to Oppose International Courts?

[Dr. Joanna Rozpedowski (twitter: @JKRozpedowski) teaches political theory at George Mason University, Schar School of Policy and Government, and her research focuses on international human rights and humanitarian law, geopolitics, and global security.]

As recently as April 2019, the Trump Administration renewed a long-standing U.S. opposition to international courts by revoking visas of the International Criminal Court’s Chief Prosecutor, Fatou Bensouda, and her team in response to the prospects of a looming investigation of the U.S. involvement in Afghanistan. 

The genealogy of America’s unprecedented anger towards a system of international law the country has helped to articulate and bring to fruition in the post-1945 global institutional renaissance is difficult to understand much less defend. Suffice it to say that one particular incident has earned the unremitting scorn of America’s elite establishment. In November 2017, a British newspaper – The Guardian – reported on the Chief ICC Prosecutor’s request for judicial authorization from Pre-Trial Chamber to commence an investigation into the “alleged war crimes in Afghanistan by the Taliban, Afghan government forces and international forces, including U.S. troops” and CIA activities conducted in detention centers in Afghanistan from 1 May 2003. A swift response from the United States Department of State dismissed the ICC Prosecutor’s actions as “attacking America’s rule of law”. The U.S. government subsequently launched a series of visa- restriction measures against the ICC staff which intended to protect U.S. sovereignty and insulate its citizens from “unjust investigation and prosecution by the international court.”

But, why all this fear and trembling? Is not the United States’ diplomatic community widely misunderstanding and misrepresenting ICC’s powers, its legal mandate, and obligations under the Rome Statute? 

What Is the ICC’s Mandate? 

The International Criminal Court is a treaty-based tribunal, whose existence derives from the Rome Statute. Its jurisdiction is determined by the number of governments that choose to ratify and accede to the Statute and thus enjoy certain rights and perform designated duties. And although the UN Security Council refers cases to the ICC, the Court itself was not established by nor is an organ of the Security Council. Rather, thanks to the Negotiated Relationship Agreement between the United Nations and the ICC, a relationship of mutual cooperation exists between the two institutions. Like most supranational judicial institutions of its kind, the ICC is divided into four organs consisting of the judicial chambers, the presidency, the prosecutor, and the registry and is supported by a large administrative bureaucracy. The eighteen judges elected by a majority vote of the Assembly of State Parties for terms of nine years preside over a substantial and highly complex and controversial caseload. Once a situation is referred to the ICC, the prosecutor has the sole authority to investigate individual suspects and seek indictments against them as long as they fall under the subject matter jurisdiction defined by the Rome Statute. The ICC’s process is characterized by deferential complementarity. Its primary duty is to ensure that national court systems are given sufficient opportunity to “investigate and prosecute individuals suspected of committing atrocity crimes referred to the Court” (p. 75). The ICC takes initiative only after national courts are unwilling or unable to carry out proper investigations or prosecutions. After all, “the long-term objective is to strengthen the capabilities of an incentivize national courts to prosecute atrocity crimes and use the Court … for cases that cannot be prosecuted elsewhere” (p. 75).

The International Criminal Court is a relatively young institution, whose legal mandate rests on the 1998 Rome Statute. Article 7 of the Rome Statute of the International Criminal Court reserves for itself the special privilege of prosecuting especially egregious crimes against humanity such as murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or severe deprivation of physical liberty, torture, rape, sexual slavery, persecution against collectivities on political, racial, national, ethnic, cultural, religious or gender grounds, enforceable disappearance of persons, the crime of apartheid, and other inhumane acts of similar character. Additionally, the ICC has broad jurisdiction over the crime of genocide, crimes of aggression, war crimes and has been involved in some 22 cases and 9 situations in Uganda, the Democratic Republic of the Congo, the Central African Republic, Mali, Darfur, Sudan, Kenya, and Libya. 

The ICC’s extraordinary mandate pursued under the aegis of universal jurisdiction seeks not only to copy but expand the work of domestic courts by hearing witness depositions, weighing evidence, developing rules of evidence and procedure through an extraordinary corpus of rulings to ensure legal certainty, procedural transparency, and coherence of law. Following the legality principle, the ICC aims to further ensure the fair application of the law in all circumstances by rendering decisions beyond a reasonable doubt. The explicit – albeit often-misunderstood – aim of ICC’s international adjudicatory and prosecutorial mechanisms lies in the courts’ consistent affirmation of the rule of law and faithful and apolitical execution of justice in pursuit of criminal responsibility and accountability. This is particularly instrumental in conflict-torn societies, whose rebuilding and stabilization efforts rest on political reconciliation through an apolitical execution of justice. These lofty ambitions vested in the ICC are the natural extension of the liberal notion of justice, which the United States’ own eminently rich constitutional tradition has historically upheld. 

Yet, the ICC’s limited jurisdiction presents an enormous challenge to international justice and is typically delimited by: (i) States accession to treaties; (ii) the UN Security Council’s political alignments, configurations, and the power of the purse; (iii) Scarcity of resources, which undermine the international will and effort to create or replicate new judicial bodies with similarly oriented human rights mandates. 

U.S. Opposition to the ICC 

Given the ICC’s stated mandate and America’s own institutional legal framework, why would the United States government consistently oppose the ICC and, by extension, other international courts, and tribunals whose international legal mandate promises to hold the military personnel and political leaders to a uniform global standard of justice? 

Part of the answer stems from a consistent U.S. misrepresentation or misinterpretation of the ICC’s mandate and the states’ role in upholding norms comprising international law. 

It is worth recalling the operating procedures of the ICC, which make room for the sacrosanct norm of state sovereignty and which honor and defer to domestic legal processes and rulings. The ICC jurisdiction enters into force – as stated above – only when the state’s judicial system is too weak, unable, or unwilling to act on cases where alleged violations of international criminal law have taken place. Countries with strong constitutional traditions and independent judiciaries, therefore, in principle and practice are not subject to random encroachments of the International Criminal Court. 

Normative Aspirations of International Law 

Exhaustive historiography of international law, as a holistic body of a prescriptive and binding character, has been largely neglected until the “global war or terror[ism]” and the rapidly advancing technologies of war. 

Judge Theodor Meron of the International Criminal Tribunal for the former Yugoslavia, for one, has responded positively and affirmatively to a growing public consensus and urgency for the development of international guidelines that can bridge the gap between the international law’s normative aspirations and its practice. If, as Judge Meron intimated, the American Civil War could give rise to the Lieber Code which subsequently led to the development of the Hague Law and the Battle of Solferino inspired the creation of the International Red Cross, the Nazi atrocities provoked the writing of the Nuremberg Charter of 1949 and the Geneva Law then surely the atrocities in Yugoslavia and Rwanda could give rise to the creation of independent ad hoc Tribunals and criminal courts vested with the uncompromising weighing of evidence in the prosecution of state and individual responsibility for violations of basic norms of humanity. 

Domestic as well as international courts – independently of the prevailing political consensus – have shown an invested effort in the maintenance of the international rule of law. They have articulated and refined the principle of fairness, avoided undue arbitrariness, and encouraged transparency in holding states and heads of states criminally liable and accountable for egregious violations of international law. 

International courts are increasingly speaking to issues that used to fall exclusively within the national domain. Literature and case law confirms that domestic courts and supreme judicial bodies of the land increasingly respond to international legal precedent as well as shape the interpretation and understanding of international human rights concerning a plethora of international crimes detrimental to human well-being and flourishing, including unlawful detention and torture of persons, terrorism, arms trafficking, conspiracy to commit crimes in the context of the war on terror. 

U.S. Domestic Law in the International Legal Context 

America’s sovereign “acts of state” have had a significant impact on the rights of foreign nationals engaged in the global theatre of the “war on terror.” The U.S. Congress Joint Resolution authorized the President of the United States to “use all means necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided” al- Qaeda terrorist attacks on the World Trade Center Towers in New York City on September 11, 2001. The subsequent U.S. invasion of Afghanistan, a capture of a Yemeni national – Salim Ahmed Hamdan – by militia forces, and his detention at Guantanamo Bay, Cuba, raised important questions of international law – those concerning jurisdiction and authority of trial by military commissions for “then-unspecified crimes” of foreign fighters and suspected terrorists. 

In 2002, the United States charged Hamdan with conspiracy “to commit … offenses triable by military commission.” The international law of war, however, sets clear preconditions for the commission’s exercise of jurisdiction in Article of War 15 (and UCMJ Art. 21). The commission’s jurisdiction must be “limited to trying offenses committed within the convening commander’s field of command, i.e. within the theater of war, and the offense charged must have been committed during, not before or after, the war.” In the habeas and mandamus petitions, Hamdan argued that the military commission lacks authority to try him because “(1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan said, is not a violation of the law of war; and (2) the procedures adopted to try him violated basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.” Since, Hamdan was “not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001”, which would fall under the rubric of conspiracy, the offense purported “is not triable by law-of-war military commission.”

The United States’ domestic courts have shown some willingness to address concerns raised by international law. Even the notoriously inward-looking U.S. Supreme Court in Hamdan v. Rumsfeld, Secretary of Defense, et al. took note of plaintiffs’ rights under the Hague and Geneva Conventions when the United States charged Hamdan with a conspiracy to commit acts of terrorism, which resulted in his detention without charge at the U.S. Guantanamo Bay prison. 

The U.S. Supreme Court in its June 29, 2006 decision agreed that Hamdan’s (i) military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821 and the Geneva Conventions; (ii) “The crime of ‘conspiracy’ has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions— the major treaties on the law of war.” Furthermore, the U.S. Supreme Court took note of precedent and other international judicial bodies when justifying its conclusions. What is more important, the Supreme Court asserted – heeding Alexander Hamilton’s warning – that arbitrary imprisonment is “the most formidable instrument of tyranny” and that even “the Constitution does not give the President (or Congress) a blank check to determine the response” (p. 76) or breach their political authority in responding to international crises. 

The Supremacy of Law 

Whether the constitutional tradition of the United States recognizes the supremacy of international treaty law over domestic laws is a matter of intellectual contestation and legal dispute. Since the 1790s, the U.S. Supreme Court has relied upon and incorporated the international legal doctrine into domestic case law. The more recent “internationalist” turn of the Court, however, has generated political controversy and raised largely unsubstantiated fears over the irreversible diminution of U.S. sovereignty. 

The U.S. Supreme Court’s willingness to participate in the international legal discourse should be affirmed and encouraged as it offers political opportunities for the United States. The current geopolitical climate calls for the U.S. to play a far more active role in the evolution of the international legal order. Dodging this historic opportunity would merely sustain, if not depreciate further, the country’s stagnating relevance on the world stage. Justice Stephen Breyer has aptly recognized that America’s judicial system must become increasingly mindful of the multilayered nature of cases that come before it. Breyer rightly noted in his 2015 book The Court and the World that “foreign persons and activities, foreign commerce … and foreign threats to national security” posed by an “interdependent world – a world of instant communications and commerce, and shared problems of … security, the environment, health, and trade … ever more pervasively link individuals without regard to national boundaries” (p. 4).  

Global Repercussions 

In this context, America’s diplomatic efforts which consistently curb the role of international justice and actively subvert international legal norms seem at best, mislaid. To paraphrase Franklin D. Roosevelt, “the only thing” America has to fear from global justice and international law, “is fear itself.” 

In the long term, America’s reserved, if not altogether, hostile attitude towards international law and its institutions will adversely affect international peace and stability. China and Russia, are particularly eager to use lawfare to strategically undermine the international rules-based order (recall China’s rejection of the Permanent Court of Arbitration’s 2016 South China Sea ruling) and establish competing parallel international organizations to further damage, delegitimize, and humiliate Western countries for their own unguarded misuse of legal systems and principles. 

By methodically etching away at the foundations of Western systems of governance and stoking a paralyzing dissensus once upheld and vested in the letter and spirit of (international) law, the tradition of liberalism and institutions of representative democracy, America’s ideological and economic competitors will soon find themselves on the winning side of history.