INTERVIEWS | Should the U.S. support the International Criminal Court?

Leila Nadya Sadat

International Justice Post 9/11: An Interview With Leila Nadya Sadat
Criminal Defense Weekly. Nov. 20, 2002

By Jordan Elgrably

The author most recently of The International Criminal Court and the Transformation of International Law, Leila Nadya Sadat is Professor of Law at Washington University in St. Louis.

Question: What's the back story on why the Bush Administration wants to withdraw from the Rome Statute of the International Criminal Court? Are they genuinely concerned that the average American peacekeeper or soldier might get caught up in an ICC war crimes trial?

Leila Nadya Sadat: If you actually read the text of the treaty, the argument that the average American might get caught up by the ICC is so spurious in itself, there has to be a level of subtext in both the government and the media about what this treaty entails.

Should the American legal community be concerned about the Bush Administration's withdrawal from the Rome Statute?

It's not so much a legal "question" as it is a political one. The signature on our treaty binds us not to defeat the object and the purpose of the treaty, and so you could presumably say that the Administration is being legalistic in its approach by removing the signature. But it actually cannot remove the signature and say that you have no intent to ratify [the treaty].

In point of fact, the Bush Administration has no authority to speak for the United States in perpetuity. It can only speak for its own administration. So a new president can come in and submit the treaty for ratification in the Senate. What the Administration does doesn't stop the new president from doing that, because it can only bind its own administration, it can't bind America forever, so to speak.

However, there are several reasons why people in the Bush Administration are concerned about the ICC. One is a fundamental good-faith misunderstanding about what the court is. From what I've learned [in the course of my research], there are very few people that have actually spent much time studying the treaty. Because if they did, I think they would be amply reassured by the provisions that would protect the United States, its citizens and its leaders from frivolous or unfounded prosecutions. A more fundamental point is that even had they understood it, they very much have a political ideology that's very conservative, anti-internationalist, anti-multilateral, and unilateralist; in other words, an "we're going to go it alone" ideology. And I think this goes far beyond the International Criminal Court, it goes to the entire United Nations system.

I was just reading about the latest UN Security Council and UN resolutions, and it seems that the United States is launching a full frontal attack on all structures of international law. And ironically it's doing so by arguing "we're protecting international law, because the ICC treaty defeats state sovereignty." Yet the ICC treaty doesn't defeat state sovereignty - it doesn't affect state sovereignty at all, but rather uses well-established international law rules which provide that states can try people that commit crimes on their [own] territory, and in fact they have a duty to try them. And as part of a state wanting but being unable to try them, it can hand them over to the International Criminal Court.

The ICC regime is just part and parcel of international criminal law, part of international law. There's nothing extraordinary or exceptional about the treaty regime. So the United States is lumping this with all the other actions we've been taking - from nuclear non-proliferation to backing out of the Kyoto Treaty, the Convention on the Rights of the Child, on the elimination of the discrimination against women - all the conventions that we've been taking a very aggressive posture toward, this is just one more piece of that.

This does hit the defense people like Dick Cheney more because they see a prospect of the American soldier coming under the ICC's judgment. Again, their argument is not very well thought through; the treaty in fact protects the American solider. The treaty is designed to rein in rogue regimes; it's not designed to constrain properly conducted military actions. It's really aimed at rogue regimes that use weapons of mass destruction, that inflict massive civilian casualties or that use military methods that are illegal under the laws of war.

When we think of the International Criminal Court our reference of course is the Nuremberg trials, which lasted from 1945 to 1949, and then when it comes to war crimes we're thinking of genocide in Bosnia or Rwanda. But what about a country like the United States: could it come under ICC scrutiny, say, for carpet-bombing Iraq again?

Carpet-bombing is now considered a war crime, if it's indiscriminate. The firebombing of Dresden, which the Allies did do during WWII, is now classified as a war crime. In the Kosovo investigation that was done by the Office of the Prosecutor for the International Criminal Tribunal for the former Yugoslavia, they did conclude and they did state in their report that you can't carpet bomb or firebomb a city; indiscriminate killing of civilians is clearly prohibited under the laws of war. But we don't do that, and in fact in Kosovo, the criticism was that we were flying extremely high, using highly-sophisticated techniques to identify our targets, and targeting them essentially with no possible injury to ourselves, because we were flying so high. And so the argument was that flying that high is indiscriminate, and the Office of the Prosecutor concluded that it wasn't, that it was lawful to use very precise, "smart" weapons to target very specific targets.

It seems very unlikely to me that the United States is going to be engaging in carpet bombing or firebombing a city or do any of the kinds of things we now consider war crimes. In fact, we consider those war crimes under our code of military justice.

In any event, there is no retroactive justice to be wrought by the ICC, so that nothing that the U.S. military or the CIA did, whether it was in Vietnam, Chile, Panama, Iraq or elsewhere can be prosecuted after the fact.

And that was a concession that was made in the Rome Statute to all states, for no state wanted [to accept] retroactive jurisdiction. (Some of the human rights NGOs would have loved retroactive jurisdiction.) But no state was going to sign a treaty that was retroactive.
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Leila Nadya Sadat is active in her work on the new International Criminal Court, attending meetings of the court’s Assembly of States Parties, speaking at fora to examine the court and its future relationship to the United States, and writing essays and articles examining various features of this new international institution. She lectured at the joint Hague conference held with the American Society of International Law and met with judges at the ICC and the International Criminal Tribunal for the former Yugoslavia. She also lectured at the National University in Ireland on issues relating to the ICC...

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