The International Criminal Court: Does It Have a Future?

The terrorist attack a year ago on America’s leading symbols of material power created a perceived conflict both domestically within America and internationally between security and law.  Until the summer of 2002, think tanks and pundits debated how best to balance the needs of the two competing goals. 

This effort to develop a new international law of unilateral initiatives on behalf of global security necessarily conflicts with the rapidly growing forces that seek peace through international consensus and cooperation in pursuing justice as the most reliable long-range means to pursue stability and security.  In the center of the combat zone between the two forces is the new International Criminal Court, which started to function on July 1, 2002, in the face of vehement opposition from the Administration in Washington.

Muslims should start a continuing project to monitor the development of this conflict between the global rule of law represented by the ICC and the post-modern or relativistic international law first publicly proposed by Henry Kissinger on August 12th to legitimize a “new international order” growing out of America’s “first preemptive war” now being prepared against Iraq.

The objective of a broader project on international courts should be to address the concerns of the unilateralists in American decision-making circles so that support for the universal rule of law based on divine revelation, natural law, and what Jefferson called “a decent respect to the opinions of mankind” can provide the core of America’s inevitable leadership in the world.

II.  Strategic Background

During the past forty years, I have carefully studied the linkage between “op ed” statements by Henry Kissinger and subsequent governmental action on new directions in U. S. foreign policy.  Kissinger has never been known to initiate new policy or even to do any really creative thinking in developing such policy.  He is unsurpassed, however, as a staff man in forecasting the winning side in policy debates and co-opting the winning position as his own.  Every major change in American policy has been preceded within weeks by a major position paper by Kissinger published in The Washington Post, The New York Times, or The Wall Street Journal.  His position papers always reflect a consensus within the permanent foreign policy establishment, which functions independently of domestic politics and even of the most powerful non-financial special interest groups.

One of Kissinger’s most important position papers, entitled “What Kind of a New World Order,” was published in The Washington Post of December 3, 1991, to consolidate the lessons of the January 26th counter-attack against Iraq.  He opposed the term Pax America, which President Bush had used to encapsulate America’s strategic purpose, and branded as naïve even the substitute term pax universalis. As discussed in the chapter, “The Vision of World Order,” in my book, Shaping the Future: Challenge and Response, 1997, Kissinger opposed any mention of the term “new world order,” because he said that it presupposes a commonwealth of interests among the world’s six major powers, the United States, Europe, China, Japan, Russia, and India.  The most realistic U.S. strategy, he concluded, is to update his “balance of power” concept, originally designed for the bi-polar Cold War with the Soviet Union, to orchestrate these regional centers of power in support of high priority global issues, the foremost of which is how to combat proliferation of weapons of mass destruction beyond these six core countries.

A decade later, the attacks of 9/11/01 punctured the dream of American invulnerability to the extremism resulting from ignored or unattended global injustices.  And it led to a new urgency in securing support for American global leadership.  On August 12, 2002, Kissinger used The Washington Post to update his grand strategy for the new century in an almost full-page position paper entitled, “Our Intervention in Iraq: How a Preemptive War Could Lead to a New International Order.”

In this article, Kissinger calls for a new international legal framework to legitimize preemptive attack against sovereign nations.  Supporters of expansionist Zionism in the Holy Land started to advocate such a new legal framework after Israel bombed Iraq’s Daemona nuclear weapons plant in 1982.  Others joined them after former Senators Gary Hart and Warren Rudman in 1999 published the landmark study by the blue-ribbon U. S. Commission on National Security in the Twenty-First Century, entitled New World Coming: American Security in the Century Ahead.  This study confirmed the almost universal conclusion of experts in the field that, “Americans will likely die on American soil, possibly in large numbers.”

Kissinger built on the doctrine of “just war,” long supported by both Christian and Muslim legal philosophers, to propose a new sub-doctrine of “justified preemption” as the basis “to define a comprehensive policy for America and for the rest of the world.”  Kissinger explained in his August 12, 2002, position paper on building “a new world order through preemptive war” that, “The new approach is revolutionary.  Regime change as a goal for military intervention challenges the international system established by the 1648 Treaty of Westphalia, which, after the carnage of the religious wars, established the principle of non-intervention in the domestic affairs of other states.  The notion of justified preemption runs counter to modern international law, which sanctions the use of force in self-defense only against actual, not potential, threats. … The international regimen following the Treaty of Westphalia was based on the concept of an impermeable nation-state and a limited military technology that generally permitted a nation to run the risk of awaiting an unambiguous challenge.  But the terrorist threat transcends the nation-state.”  This is the intellectual basis of President Bush’s recently adopted concept of “unilaterally determined preemptive self-defense.”

Ironically, a contradictory argument in support of the same strategic goal was advanced in a major think-piece by President Reagan’s Secretary of State, George P. Shultz, in the January 26, 2002, issue of The Washington Post.  This position paper, entitled “Terror and the States,” sought to legitimate unilateral action by the United States against sovereign states on the basis of their accountability in the war against terrorism.  Those that do not appropriately line up against the new evil empire forfeit their rights as sovereign states. 

“The monstrous acts of Al Qa’ida,” writes Shultz, “have now made the principle of state accountability the law of nations.  This emphasis on the sovereign state dramatizes a shift of concept in international relations perceptively underway today. … We live in an international system of states, a system that originated more than 300 years ago.”  As discussed in my lengthy analysis, entitled “Religious Extremism: Muslim Challenge and Islamic Response,” in the May 2002 issue of The American Muslim ( ), under the section, “Legitimating Unilateral Action by the Sovereign State,” the Shultz argument is that the sovereign power of the world’s guardian overrides the sovereignty of all other states to the extent that they do not abide by their international obligations.  The purpose of this Shultzian legal policy is to delegitimate existing supranational organizations and courts that might contravene the vital interests and sovereignty of the United States of America and even hold Americans accountable for their government’s unilateral actions.

Legal theories and arguments, as every American lawyer knows, are weapons in the pursuit of other goals than mere justice.  A major concern voiced by Kissinger in his August 12th grand-strategy paper is what he calls the “self-deterrence” that results from American fear that “war with Iraq could unleash Iraqi weapons of mass destruction on Israel and Saudi Arabia.”  This is one of the rare instances where the security of Israel is publicly stated as a rationale for developing new international law.  Kissinger concludes that, “If the danger [of self-deterrence] exists today, waiting will only magnify possibilities for blackmail.”

This argument of self-deterrence is critical in the only real debate still going on in Washington, namely, between the “attack now” policy, led in the permanent policy established by Henry Kissinger, and the policy of “attack later,” first articulated on August 4, 2002, on CBS’s “Face the Nation” by Brent Scowcroft, a decade-long close associate of Kissinger and his choice as Director of the National Security Council in the White House under both Presidents Gerald Ford and George H. W. Bush. 

Three days after Kissinger published his newly minted call to inaugurate a “new international order” by attacking Iraq, Scowcroft countered in The Wall Street Journal of August 15, 2002, by arguing that “Saddam Hussein seeks weapons of mass destruction not to arm terrorists, but to deter us from intervening to block his aggressive designs against his neighbors.  Direct action right now to counter this threat could undermine the effectiveness of America’s other top priority mission to counter the proven threat of non-state terrorism.”

Scowcroft’s controversial call for delay is based on his view that before America wages a major war against Iraq it should gain credibility first by committing its influence to bring peace in Palestine.  He argues that, “Possibly the most dire consequences would be the effect in the region.  The shared view in the region is that Iraq is principally an obsession of the United States.  The obsession of the region, however, is the Israeli-Palestinian conflict.  If we were seen to be turning our backs on that bitter conflict, there would be an explosion of outrage against us.”

III.  The Battle over the International Criminal Court

The most popular framework for discussion of current American foreign policy is the debate between unilateralism and multilateralism.  Unilateralism or “going it alone” is represented by U.S. opposition to what is now a growing litany of international and multilateral initiatives, notably its opposition to movements that focus on global warming, biological warfare, land mines, racism, women’s rights, and even children’s rights, and ironically, even by its growing failure to respect free-market economics untrammeled by frontiers, special interests, restrictive practices, protectionism, or governmental interference.

The almost unanimous view of both policy elites and the media around the world is that the most egregious U. S. opposition to the rights of humanity is the current Administration’s determined effort to block the development and application of international norms of justice to counter genocide and ethnic cleansing.  The issue is whether, and under what conditions, the United States of America should ratify the treaty that created the International Criminal Court.  This is the world’s first permanent legal body to hold individuals accountable to the universal norms of law that protect not only individuals, but entire groups and non-sovereign nations against genocide and what the Nuernberg Trials half a century ago determined were “crimes against humanity.”

On his last day in office, President William Clinton signed the treaty in response perhaps to polls indicating that 69% of American citizens had a “favorable impression” of the court.  In response perhaps to 9/11, however, the U.S. Senate voted down approval for joining the Court by 75 to 19 and, on May 6th, the U.S. ambassador to the United Nations formally withdrew the United States from the jurisdiction of the Court.

In the bitter Senatorial debates, Senator Chris Dodd (D-Conn) made an impassioned plea before the Senate Appropriations Committee for America to join the rest of the world in extending the rule of law. “Finally, the world stands up.  We have been begging it to do so for half a century.”

The counter-arguments have been best summarized by David Davenport of the Hoover Institution, one of the top four conservative think-tanks, in the Summer 2002 issue of its journal, The Hoover Digest, under the title “Why We Said No.”  A principal objection was that the Court, in the making for fifty years, was hastily slapped together by a coalition of only 66 of the world’s 190 countries representing only one-sixth of the world’s population, as well as by hundreds of non-governmental organizations with special interest agendas, thereby overriding the deliberative process of the well-established International Law Commission.  Even worse was that cases did not have to be referred to the Court by the U.N. Security Council, which meant that the United States could not veto the decision of the Court’s independent prosecutors.  And the prosecution does not have to provide full U.S. constitutional protections. 

Furthermore, a vote by the Court’s Assembly of States Parties is authorized to establish new categories of international crimes, including the new crime of “aggression.”  The concern is that U.S. military actions designed to stop or prevent the very human rights abuses the ICC is supposed to deter may be charged with the new crime of “aggression,” presumably by those who might disagree with the new international law now to be inaugurated through a major war against Iraq.  Significantly, all of the six permitted nuclear powers, except Europe, namely, the United States, Russia, China, Japan, and India have refused to join the Court.  Their joint action to exclude any further countries from joining the nuclear club might be found to fall under the new crime of “aggression.” 

David Davenport concluded that the real crime of the International Criminal Court is its “attempt to level the international playing field, supplanting economic, military, and political power and institutions with a one-nation, one-vote development of new norms and institutions of international law.”  Perhaps the presumption is that any new international law must be created only by those who might benefit from the new Bush Doctrine of “unilaterally determined preemptive self-defense.”

In recent weeks, the official opposition of the U. S. government to the ICC has shifted to dissuading other countries from joining the Court, unless they agree never to bring any Americans before the Court for actions taken in their countries.  The American fear of possible “politically motivated” trials, as well as almost all the other concerns, has been addressed in the treaty.  Article 98 of the Court’s statute provides for bilateral, non-extradition treaties.  The European Union favored use of this provision instead of accepting a blanket grant of immunity to American peacekeepers by the U.N. Security Council. 

In July, 2002, the American government threatened to withdraw its forces from all peacekeeping programs around the world, unless its position was accepted, but eventually agreed to continue these programs for an interim period of one year.  The Wall Street Journal, in an editorial yesterday on August 15th, attacked the European Union’s support of the Court by branding it as “European unilateralism” and recommended that the U.S. government should do everything possible to oppose the Court, including its conciliatory provisions, such as Article 98.  It concluded, “Any diplomatic discomfort now would pale in comparison to what we’d see if an American someday winds up in the ICC dock.”  Other pundits have speculated about how much force would be required to rescue such an American from foreign bondage. The Majority Whip of the House of Representatives in Washington, Tom Delay of Texas, asserted that, “We must do whatever it takes to protect those who protect us.”

The history, nature, and forecasted future of the various issues concerning the Court are elaborated in William A. Schabas’ book, An Introduction to the International Criminal Court, recently published by Cambridge University Press,

The extent of U.S. opposition to any international organizations, governmental or non-governmental, that might conflict with the “new international order” introduced in Henry Kissinger’s August 12, 2002, position paper is evidenced by a cooling of relations with all the other international tribunals.  In the spring of 2002, the U. S. Ambassador for Human Rights called for the early dismissal of the ad hoc tribunals for Rwanda and the Former Yugoslavia, even though they are integral to any serious war on international terror and certainly have an important role to play in efforts to prevent gross human rights violations against entire groups of people.

IV.  Rationale for a Project to Support International Courts

The immediate objective of Muslim scholars in carrying out a project on international courts should be to develop incentives for the United States and other countries to join the International Criminal Court after the United States completes its attack on Iraq. 

Henry Kissinger, as the world’s self-proclaimed, most astute politician, looks at the elimination of Saddam Hussein and the installation of a “liberalizing counterweight” to the “conservative governments” in the Arabian peninsula, as only a first step in the task “to translate intervention in Iraq into terms of general applicability for an international system.” 

In his path-breaking position paper of August 12, 2002, Kissinger proposed that, “America’s special responsibility, as the most powerful nation in the world, is to work toward an international system that rests on more than military power - indeed that strives to translate power into cooperation.  Any other attitude gradually will isolate and exhaust us.  Even when, on issues of ultimate national security, such as Iraq, America acts alone, it is in our national interest to couple such action with a program of postwar reconstruction, conveying to the rest of the world that our first preemptive war has been imposed by necessity and that we seek the world’s interests, not exclusively our own.”

A major task of Muslim scholars in international law should be to explain in a scholarly way the extent to which the basic principles of classical American thought are identical or similar to the basic principles, the maqasid al shari’ah, of classical Islamic thought, so that the inevitable global culture now forming throughout the world will reflect the wisdom of Islam.  The Kissinger strategy, liberally interpreted, should provide much room for such cooperation between the elites in America and the rest of the world. 

Policies of confrontation may be quintessentially Muslim, but they are basically un-Islamic.  Policies of transformation directed toward the functional Islamization of America may require much more effort and sophistication than policies deriving from alienation, extremism, and hatred.  Reliance on Allah, rather than only on our own limited human effort, is always the most assured path to long-range success in any worthwhile undertaking.

The specific objective of Muslim scholars during the first phase of a project on international courts should be to address the concerns of the unilateralists in American decision-making circles so that support for the universal rule of law based on divine revelation, natural law, and what Jefferson called “a decent respect to the opinions of mankind” can provide the core of America’s inevitable leadership in the world.