Warning – very long post!
As I see it, the US really has two problems, one of which is probably unavoidable on any terms.
It’s been universally accepted for several centuries that international law prohibits certain acts, e.g. the massacre of civilians who have surrendered. Until relatively recently, decisions about whether and how to punish these acts have been political decisions, and the procedures used have been political procedures.
For more than a century, the international community has been engaged in a process of broadening by consensus or agreement the categories of acts forbidden. Thus we have the Geneva Conventions on what is and is not permissible in warfare. We have treaties regulating the use of poison gas and dum-dum bullets. We have the Convention on Genocide.
The more we agree that certain acts are forbidden, and the more modern communications enables the whole world to learn about the commission of these acts, the more the international community finds purely political methods of punishing them inadequate. For more than half a century, starting I think with the Nuremburg and Tokyo tribunals, the international community has been developing legal procedures for indentifying and punishing internationally forbidden acts.
However these tribunals have still been established, and have operated in, an intensely political context. For example the Nuremburg tribunal could only be established after the total military defeat of Germany, and it was composed entirely of prosecutors and judges from the allied powers. Were it not for the overwhelming evidence of appalling crimes, many observers might have been tempted to say that the tribunal was a travesty, the victors’ revenge masquerading as a legal process. Plainly, as a long-term model for investigating and punishing international crimes, it won’t do. Subsequent tribunals – Rwanda, the former Yugoslavia – were not actually established and operated by declared enemies of the accused, but they were still established after the acts complained of, and in the context of the political or military collapse of the government of which the accused were members or agents. And of course there have been many appalling examples of the grossest human rights violations which no tribunal has ever been established to address – China, Cambodia.
If we take seriously the idea of trying and punishing international crimes, a standing tribunal is pretty well inevitable. And even if we don’t take it seriously, the process of creating international crimes, and of trying and punishing them at least selectively, is too far advanced to be reversed, or even stopped. The international community wants effective measures to address gross human rights violations. We cannot rely for ever on a system which only works when offending states have collapsed either militarily or politically, and often not even then. Sooner or later, there is going to be a standing international tribunal.
And, as I say, this presents two problems for the US. The first is that the US, as the world’s greatest superpower, is far and away most heavily committed country internationally. It has soldiers and other agents operating in more than 100 countries, mostly in trouble spots of one kind or another. Without any bias at all, an enormous number of the incidents and situations which might give rise to investigations are going to involve US personnel, directly or indirectly.
Related to this is the fact that there have, to date, been so few cases in which specific acts have been tried as international crimes. And, although the treaties dealing with international crimes are numerous and mostly very detailed, lawyers know that it is only through the experience of cases, decisions and judgments that we can really develop a full understanding of where the boundaries of a crime lie. So there’s going to be a awful lot of cases involving actions whose legality is questionable. They’ll be, in effect, test cases. And a good number of those could involve US personnel.
None of this is the result of any bias against the US; it is the consequence of this process starting at a time when the US happens to be the dominant superpower in the world.
The second problem, of course, is that there is some bias against the US in the international community. Precisely because the US is the world’s greatest superpower, it has a lot of enemies – countries whose interests conflict with the US, or who simply like to see the US discomfitted. And they will take every opportunity to make complaints against the US, or demand investigations of the US.
While these are legitimate concerns for the US, they are also difficult concerns to address, other than by preventing altogether the establishment of an effective mechanism for investigating, prosecuting and punishing international crimes. I think the preferred solution of the US would be
(a) to allow the court to be established,
(b) to accept that, for the reasons mentioned, the US will frequently be the subject of investigations and prosecutions, and
© to make sure that the investigation/prosecution/judgment structures will effectively filter out the cases that arise out of bias or doubtful matters.
I think they have failed to achieve the latter objective to their satisfaction, and they fall back on refusing to ratify the treaty and seeking to prevent it from coming into force which, despite the administration’s strong rhetoric, is not a position they are entirely comfortable with. If nothing else, failure to participate in the ICC deprives the US of a potentially very powerful non-military tool in the “war against terrorism”, and it leaves the US lined up with the likes of China, Syria, North Korea and Iraq in rejecting the ICC. In fact, it exposes the US to the risk of having the war against terrorism characterised as deeply hypocritical; “They say they are opposed to terrorism, but they undermine attempts to investigate and prosecute terrorist acts because they fear that they themselves will be the subject of investigations and prosecutions. Is this not tantamount to an admission that they are systematically engaged in the very acts they claim to oppose?”
For all these reasons, I think the administration is deeply unhappy to find itself in the corner that it is in. Reading between the lines of the public statements, I think the US has tried in negotiation to have the office of the prosecutor subjected to some kind of control by the Security Council. It has failed to so do but, perhaps more signicantly, it has failed to persuade such reliable allies as the UK and Australia that it is necessary or important to do so. Both have ratified the Rome Statute; neither has expressed any reservations or concerns about the proscution system (although the UK made a formal declaration about its views on unrelated matters). The UK and Australia could expect to face the same problems as the US (albeit to a lesser degree) since they are closely aligned with the US and have troops stationed in a number of other countries, but they felt able to ratify, and are not supporting the US on this matter. This would cause me to question the wisdom of the US stance.