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Leashing the dogs of war

National Interest, The, Fall, 2003 by David B. Rivkin, Jr., Lee A. Casey

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It was not until the 1990s that genuinely international criminal courts were established in the form of the United Nations ad hoc tribunals for the Former Yugoslavia and Rwanda. These institutions were based on binding UN Security Council resolutions. Both dealt with exceptional circumstances--a near Hobbesian-level breakdown in law and order in several states--and were strictly limited in their jurisdictional reach.

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Unfortunately, the International Criminal Court (ICC), established in 2001, goes much further. It is a permanent court with jurisdiction over dozens of individual offenses. In principle, the ICC can only take action in a particular case if the relevant states have failed to investigate and prosecute the matter. But the application of this principle of "complementarity" is entirely within the court's own discretion. If it concludes that allegations have not been properly handled on the national level, the ICC can then prosecute and punish the accused military or civilian officials, regardless of their official status.

Although the United States was involved in drafting the 1998 Rome Statute, it ultimately refused to ratify the document. For Europe, however, the Rome Statute has become a litmus test. All of the European Union's members have ratified the treaty, as must any state now seeking EU membership. Moreover, the EU has become so determined to impose the ICC on the United States that EU applicants have been said to endanger their chances to join merely by signing agreements with the United States to ensure that U.S. citizens will not be surrendered to the court absent its consent--even though such agreements are clearly provided for in Article 98 of the Rome Statute. There is little doubt that if the court actually attempts to investigate or prosecute American citizens, it will deliver a body blow to the transatlantic relationship.

However, even if the ICC does not target Americans, its existence will still affect NATO's operations. Although U.S. citizens are not legally subject to the ICC, the citizens of Great Britain, France, Germany and the other NATO allies are. In planning and executing military operations, these states all must consider the likely reaction of the ICC's current prosecutor and judges. How much confidence they will, in practice, put in the principle of complementarity remains to be seen. However, it already is clear that many of the ICC's proponents have jettisoned this principle, assuming that the court will, in reality, be the primary enforcement mechanism for the substantive rules incorporated into the Rome Statute.

IN THE PAST, jus in bello norms reflected a proper balance of humanitarian and military imperatives as well as the consent of sovereign states. They also were predicated upon the principle of reciprocity, enforced by national institutions, and backed up by the availability of reprisals to punish and deter noncompliance. Today, a combination of legal, ethical and political imperatives have rendered ever more elaborate laws of war both inflexible and liable to enforcement by increasingly politicized international institutions.

Leashing the dogs of war

National Interest, The, Fall, 2003 by David B. Rivkin, Jr., Lee A. Casey

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