Commentary

U. S. Hostility to the International Criminal Court
is Misguided but not Absurd*

by
Dick Howard

hat does the Bush administration’s firm refusal to accept the Rome   Treaty  and the creation of an International Criminal Court mean, considering that Chris Patten, EU external affairs commissioner and European representative  in Bosnia, views it as the most important step toward international progress  since the creation of the United Nations? To appease America’s allies, Clinton  had initialed the Treaty even though he had no intention of submitting it to the Senate, which would have refused to ratify it. But the Bushies are not afraid to frustrate these same allies by proposing, first, the notion that a treaty can be un-signed—and then, a few weeks later, accepting the risk of a crisis by refusing to participate in future United Nations interventions without an explicit exemption from all jurisdiction of the International Criminal Court. Is this a bluff? Or is it the expression of a deeper intuition of which the Bushies are perhaps not even aware?

Some commentators attempt to explain this choice in terms of domestic  policy and the perspective of the upcoming elections (as a well known aphorism suggests, all politics are local: in the November elections, Republicans could loose the control of the House, where they have a majority of only six seats). But this explanation is not false but it is too simplistic. Thus,  most Republicans (as well as a large majority of Americans) firmly support the Israeli “anti-terrorist” policy, which is interpreted as necessary to preserve a sovereignty that is threatened, as is the American,  by terrorism. But to reduce foreign policy to what is at stake in domestic with the elections neglects the novelty of the contemporary political situation, which has existed since the end of the Cold War and which further changed since September 11, 2001.

American sovereignty is at stake, the Bushies claim. Very well. But American sovereignty can be protected in two distinct ways. Either by the isolationist option, which consists of withdrawing one’s marbles and leaving the playing field to those who are willing to occupy it (with a cynical look toward A  Europe, which often talks about morality in politics even though it is unable to invent and unwilling to take activist measures to concretize her eloquent ideas); or by the type of unilateralist intervention, clearly defined by Secretary of Defense Donald Rumsfeld who said of the intervention in Afghanistan that—unlike the one in Kosovo—it would be “the mission which will determine the coalition,” and not the opposite, a clear rejection of multilateral politics.

During the 2000 presidential election, George W. Bush seemed to lean toward the isolationist option, criticizing the Clinton-Gore team for its half-hearted and arbitrary attempts at “nation building” which, especially in Somalia, proved to be disastrous. However, since September 11, after a brief period during which multilateralism seemed necessary, unilateralism has predominated. Thus, for instance, the prisoners captured in Afghanistan are still in detention at the Guantanamo Naval Base, deprived of protection under the Geneva Convention and a fortiori of any possibility to eventually appear before a new International Criminal Court. On the battle field, although various allied governments are trying to demonstrate their good intentions by sending either military forces or aid to reconstruct the country, the Americans clearly lead the game.

From this standpoint, the American threat to cut itself from the United Nations’ missions may be considered as one more manifestation of a unilateral policy which has no use for multilateralism, which is not viewed by the Bushies as the expression of a weakness and a lack of responsible will to, in the end, deter terrorism firmly and without pity. Former French Foreign Minister Hubert Védrine may have been right when he called America a hyperpower (hyperpuissance). Hence, the United States will take action regardless of what its allies might eventually think.

This can be seen concretely on the cover page of the summer issue of Foreign Affairs, which, in large red letters, an article titled “American Primacy.” Yet, if one takes a closer look at the article, one sees that, in fact, its title is “American Primacy in Perspective,” where the qualifying phrase contradicts the suggestive proposal of the journal’s editors. Further, when reading the article, the reader observes that the heading of its last section is titled “Resisting Temptation.” The logic proposed by the authors is thus worth summarizing.

The article, written by professors Stephen G. Brooks and William C. Wohlforth, first notes the superiority of the United States, manifested in all domains, over the rest of the world. In the military sector, this primacy is simultaneously quantitative and qualitative: the United States spends more on defense than the total expenditures of the next 15 countries; it States spends three times more on military research than the next 6 powers. In the economic realm, the United States has no rival; California’s economy, in itself, is larger than the sixth world power... France. As for technology, its expenditures in research and development surpass those of the next seven countries combined.

What is astonishing, according the authors, is that the United States dominates in these three crucial areas simultaneously. Indeed, previous powers dominated in only one or the other of these categories—for instance, during the Pax Britannica, France and Russia combined spent more than the United Kingdom and were able to put together superior land forces. Further, with regard to the economy, the 24 percent of the world GDP controlled by the United Kingdom barely surpassed, in 1870, the young America or the rising German power. Or, if we consider the Cold War era, the military power of the Soviet Union imposed limits on American affairs even though its economic capability was rather over estimated.

In a word, it seems that nothing can moderate the American power, which can indulge freely in the joys of unilateralism. Normally, realpolitik or the search for a balance of power would have incited such powers to create a counter-alliance to face the emergence of a hegemonic power. But American hegemony is different; it neither threatens to seize the territory of others nor does it threaten other regional powers. Finally freed from the ideological imperatives of the Cold War, it no longer needs to run the risks of which the Vietnam war remains the archetype; nor does it need to support unreliable allies simply for ideological reasons. Because it does not need the support of allies, its decisions, freed from any external constraint, should reflect a policy of pure logic. What is this logic suggested by our authors? 

Free to act as it pleases, the United States is also free to abstain from acting. This is not an insignificant remark.  Precisely because it does not need allies, it can find reliable allies to establish alliances based on values (instead of alliances of complacency or so-called realism). But this great freedom that the United States enjoys also gives it the right to be magnanimous and to put in place a policy which integrates immediate choices and apparently pressing decisions into a long term vision. That makes clear the authors’ conclusion that “it is influence, not power, that is ultimately most valuable.” For example, they continue, issues such as the environment, disease, migration, and trade barriers cannot be solved by the application of a unilateral American power. Alluding to Machiavelli (whom, of course, the authors do not cite in this quasi-official American periodical), such a resistance to temptation would explain why the United States will be “not only feared but also loved.”

It is obvious that the political logic that follows from American dominance can serve as grounds for criticism of American policy in regard to the International Criminal Court. The real truth about a unilateral hegemony would be a generous multilateral policy! Yet the Bushies do not recognize this possibility?  How can we understand this surprising reversal? Why does a similar analysis of the hegemonic situation by the Bushies lead to opposite conclusions?

What is striking is that these two political choices—the unilateralist and the multilateralist—share the same vision of a desirable future, that of a pacified political world in which neither morality nor legality offer reliable standards for judgment in deeply ambiguous situations. The Bushies try to avoid such ambiguity by affirming their confidence in their rights and their own morality; they want to unleash the goodness of American benevolence for the welfare of the world. Multilateralists assume that all problems can be solved, all ambiguity clarified, by means of a logic based on the balance of power and the play of self-interest. Then conflict is abolished; there is no room for doubt anymore; good will is sufficient.

If I underline this parallelism between two positions that show no tolerance for ambiguity and no ability to face up to indeterminate conditions, it is first to criticize those who do not see that the attempt to subject all such indetermination to judgement by the International Crime Tribunal that denounce the juridification of domestic policy. I leave the moral question aside, which some (referring to Kant) are content in order to avoid the need for political choice. More important is the relationship between the juridical and the political. When one thinks about it, any prosecutor must decide, once his investigation is well underway, the opportunity to hand over an accused to the courts. We know that for a long time Milosevic was untouchable, and that Karadzic and Mladic are still in hiding. We also know that it was once proposed to arrest Henry Kissinger at the Ritz during one of his visits in Paris; but we also know that the arrest of Pinochet in London has had a positive outcome for Chilean political life. What is the relationship between political decision and juridical act? And, in the case of the International Criminal Court, what can be the outcome of this relationship?

The primary danger is thus a naive juridification that ignores the dimension of political life; the second, on the contrary, comes from the inevitable politicization of the International Criminal Court. One example illustrating the first danger is presented by the International Criminal Court for the former Yugoslavia, which wants Jonathan Randall, a former journalist for the Washington Post, to testify at the Hague. This juridical rigidity does not take into account the predictable outcome of such a testimony on the journalistic profession and on the public who depends on it: each journalist would henceforth become a threat that must be avoided, if not eliminated, which would deprive the public of its access to the unraveling of political life, as for instance in Bosnia. A second example, a contrario, recently occurred in the United States where a law passed in Congress allows individuals who have been tortured to sue their torturers if they are found on American soil. For instance, in July 2002, a federal jury in Florida ruled that two retired Salvadoran generals living in the United States (who had been pardoned in their home country one of the conditions at the end of its civil war) were liable for acts of torture committed during the civil war. If this can be done, what should we think about the changes that future negotiations will put an end to such wanton violence?

The second danger is the politicization that the United States fears when it rejects the jurisdiction of the new court. But one must be take heed when evaluating the substance of the American argument which, I believe, is rather weak except for one crucial point. In effect, it seems that the Rome Treaty establishing the court anticipated most possible objections with regard to this matter; no one can really imagine that an American soldier who wears the blue UN helmet would be handed over to the Hague. On the other hand, given the American role, power (and omnipresence), one can imagine that a prosecutor, lusting for publicity, driven by ideology or simply by jealousy, could seek to prosecute political figures. But again, sufficient protections seem to be in place regarding this matter. Consequently, the American argument lacks strength. Yet it cannot be entirely rejected.  It is only in light of the changes that have occurred since September 11, 2001, that we can understand the root of the American decision (which was made prior to this date, but it’s another story: I do not work for the Bushies; I try to understand the world has it presents itself to us).

In effect, the justice system can only intervene subsequent to a criminal act. However, no politician would be willing to accept this limitation. The gravity of the unpredictable attacks was so that the American public asks and will ask that the State intervene or take preventative measures. However, it is difficult to respond to such a demand; no one knows how to define a preventive justice (Let alone a pre-emptive military intervention). This matter is being greatly debated right now, and it will be necessary to continue discussing it for a long time to come. It is an issue that must be decided upon in order to build a path to the future. For now, George W. Bush has responded in a brutal anti-political manner, first in May during his speech in the German Bundestag, then in June at West Point. He referred to the necessity for preventative interventions, even pre-emptive ones. This solution is not entirely satisfactory, especially when it involves a unilateralist American decision. We see the difficulty of the problem when we know that the Bushies’ rhetoric is aimed at justifying an intervention in Iraq. But, before we agree with simplistic multilateralists and pessimists, we have to admit one must note that this anti-political choice is also a political one, as is indicated by the fact that he was criticized by both the press and the public indicates; and that this decision was not unanimous within the Bush administration. In other words, there is nevertheless room for politics. It is up to us to bring our coals to Newcastle if the political debate is to replace the anti-political logics of juridification and moralism.

_____________________

* This article originally appeared in Esprit and was translated from the French by Emmanuelle Pourroy-Braud.