Who Shall Be Judge? :The United States, the InternationalCriminal Court, and the Global Enforcement of Human Rights

37 Pages·0.134 MB·English

by  Mayerfeld J.

HUMAN RIGHTS QUARTERLY
Who Shall Be Judge?:
The United States, the International
Criminal Court, and the Global
Enforcement of Human Rights
Jamie Mayerfeld*
ABSTRACT
The International Criminal Court, empowered to prosecute individuals
guilty of the worst human rights atrocities, has encountered firm resistance
from the United States. Underlying this dispute is a clash between two
different models for achieving the global enforcement of human rights: a
collective enforcement model exemplified by the Court, and a unidirec-
tional enforcement model favored by the US. Both models present
difficulties, but those of the collective model are curable, while those of the
unidirectional model are not. Since the ICC cures the most significant
difficulties associated with the collective model, it deserves US support.
This paper addresses several of the specific legal, moral, and political
controversies that have surfaced in debates over the ICC.
*Jamie Mayerfeld is Associate Professor of Political Science at the University of Washington,
where he teaches courses on political theory and human rights. He received a Human Rights
Teaching Fellowship from Columbia Law School in Spring 2000. His publications include
Suffering and Moral Responsibility (Oxford University Press, 1999) and “The Myth of Benign
Group Identity: A Critique of Liberal Nationalism,” 30 Polity 555–78 (1998).
I wish to record my profound gratitude to the Human Rights Institute of Columbia Law
School for providing me with a Human Rights Teaching Fellowship in the spring of 2000. The
Fellowship was the indispensable impetus and inspiration for this article. My thanks also to
the Coalition for the International Criminal Court for its excellent e-mail news service, on
which I have relied heavily. Finally, I am indebted to several people for helpful comments on
earlier drafts. They include José Alvarez, Charles Beitz, Joan Fitzpatrick, Robert George, Peter
Mack, the late Ernest Mayerfeld, Marilyn Mayerfeld, Jonathan Mercer, Leila Sadat, and
Garrath Williams. Any errors in the article are my fault alone.
Human Rights Quarterly 25 (2003) 93–129 © 2003 by The Johns Hopkins University Press
94 HUMAN RIGHTS QUARTERLY Vol. 25
I. INTRODUCTION
Since World War II, an international movement has been engaged in a
heroic quest for the global enforcement of human rights. After halting
progress during the Cold War, the human rights movement has advanced
dramatically closer toward its goal. Recent developments include the
increased willingness of the European Court of Human Rights to overturn
legislation of member states; the new practice of filing suit in US federal
courts against human rights abusers from around the world; the entry into
force of the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment; the assertion by a growing number of
states of universal jurisdiction over major human rights crimes (most
famously illustrated by the British arrest of Augusto Pinochet on an
extradition request from Spain); and the establishment of UN-sponsored war
crimes tribunals for Rwanda, Sierra Leone, and the Former Yugoslavia.
Today the worldwide enforcement of human rights seems a less utopian
goal than it once did. With success come a set of tough questions; political
riddles that previously seemed remote have become more urgent. The
fundamental challenge might be stated as follows: How can the world
institute the global enforcement of fundamental human rights in a manner
that is fair and accurate and that does not inflame international tensions?
Part of our difficulty is that we lack a well worked political theory of
international human rights. The most fully developed political theories of
rights—for example, John Locke’s Second Treatise of Government1—show
us, in now familiar terms, how human rights are to be protected within a
single country. When it comes to the protection of human rights across
international borders, however, we find ourselves less well guided by
experience or theory.
The challenges are vividly illustrated in the controversy surrounding the
newly created International Criminal Court (ICC). Hailed at its inception as
“a triumph for all peoples of the world”2 and celebrated as a fulfillment of
the principles articulated at Nuremberg over fifty years ago, the Court is
authorized to prosecute individuals for genocide, war crimes, and crimes
against humanity. The Statute authorizing the ICC was adopted by an
intergovernmental conference in Rome in the summer of 1998. After
collecting the required sixty ratifications more quickly than anyone antici-
1. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (Thomas P. Peardon ed., The Library of Liberal
Arts, Inc. 1952).
2. M. Cherif Bassiouni, Speech at Rome Ceremony (18 July 1998), in Bassiouni, Negotiating
the Treaty of Rome, 32 CORNELL INT’L L. J. 443, 468 (1999).
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pated, the Court began its official existence on 1 July 2002. As of
30October 2002, it had been ratified by eighty-one countries.3
Support for the ICC was never universal. Alongside the 120 states voting
for the Treaty at the Rome Conference, there were twenty-one abstentions
and seven negative votes. Several major countries (including China, India,
and Russia) have no evident intention of ratifying the Rome Statute. Yet no
country has proclaimed its objections more vigorously than the United
States. The Clinton Administration began by supporting the creation of an
ICC, participated actively in the drafting process, and expressed satisfaction
with most elements of the resulting Statute. However, it was unable to
reconcile itself to certain of the treaty provisions; provisions which led it to
cast a negative vote at Rome and which became the object of its persistent
criticisms. President Clinton relented enough to sign the Treaty on the last
possible date, 31 December 2000, but took the opportunity to restate his
objections and to advise his successor against requesting ratification by the
Senate.
Under George W. Bush, ambivalence has been replaced by undisguised
hostility, manifested in a series of actions that typify the well-known
unilateralism of the new administration. In May 2002, the United States
declared that, its earlier signature notwithstanding, it had no intention of
ratifying the Statute, thereby freeing itself, under Article 18 of the Vienna
Convention on the Law of Treaties, to act contrary to the object and purpose
of the ICC (hence the popular use of the term “unsigning” to describe the
May declaration). In July 2002, immediately following the ICC’s entry into
force, the US fought a pitched battle in the UN Security Council, threatening
to veto all future peacekeeping operations unless the Council authorized the
permanent immunity from legal action by the ICC of all UN peacekeepers
whose governments had not ratified the Rome Statute. After encountering
stiffer resistance than it anticipated, the US settled for a grant of immunity
lasting one year, with the possibility of renewal.4 At about the same time,
Congress passed and the President signed the “American Servicemembers’
Protection Act of 2002” (ASPA), which bars US participation in UN
peacekeeping missions to countries belonging to the Court; cuts off military
aid to most countries that have ratified the Treaty unless they promise not to
transfer US citizens to the Court; and authorizes military action to liberate
US and allied service members taken into the Court’s custody. The President
3. They include most European and South American countries, several countries in Africa,
along with Canada, Australia, and New Zealand, and a few countries in Asia and
Oceania.
4. S.C. Res. 1422, U.N. SCOR, 4572d mtg. at 1, U.N. Doc. S/RES/1422 (2002).
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is permitted to waive certain of these provisions when the “national interest”
so requires.5 The Bush administration thereupon undertook an aggressive
campaign to negotiate bilateral immunity agreements with foreign govern-
ments, invoking the ASPA to threaten the termination of military aid if the
agreements are not forthcoming.6
This paper examines the debate which has pitted supporters of the ICC
against a resistant United States. The dispute is not about the need for the
global enforcement of human rights, a goal which both parties affirm. What
is being contested instead is the proper means of achieving such enforce-
ment. Supporters of the ICC favor what I call the collective model of
enforcement; the United States favors what I call the unidirectional model.
In this paper, I explore the logic of these two models, and the possible gains
and costs of each. It may be tempting to dismiss the unidirectional model as
self-serving, or else the collective model as naive. I shall take both models
seriously, though in the end I shall suggest that the difficulties of the
collective model are curable while those of the unidirectional model are
not. If, as I intend to argue, the ICC cures the most significant difficulties
associated with the collective model, then it merits US government support.
US critics, wedded to the perspective of their original model, have
exaggerated the dangers of the ICC and underestimated those of their
preferred alternative. It is time for a paradigm shift.
In analyzing the conflict between the ICC and the United States, I draw
on the insights of John Locke, whose theory of rights, though addressed to
the domestic context, nevertheless sheds light on the choices that confront
us on the international level. Locke helps us see the advantages and
disadvantages of different models of rights enforcement. He is a cautious
thinker, whose caution sometimes borders on pessimism. Despite his
caution, he believes that the collective enforcement of human rights is
possible. He offers a model of how to think realistically but imaginatively
about the challenge of building institutions that provide lasting justice.
Needless to say, the “global enforcement of human rights” is a complex
idea in need of elaboration. At the outset, we may distinguish between two
levels of enforcement. At the domestic level, governments have an obliga-
tion to ensure reliable protection of the human rights of those residing on
their territory and those affected by their actions abroad. Here enforcement
means the imposition through a variety of legal and policy devices of those
duties on which the reliable enjoyment of human rights depends. However,
5. American Servicemembers’ Protection Act of 2002, Pub. L. No. 107-206, §§ 2001–2008
(2002).
6. Elizabeth Becker, U.S. Ties Military Aid to Peacekeepers’ Immunity, N.Y. TIMES, 10 Aug.
2002, at A1.
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governments may prove unable or unwilling to guarantee the human rights
of persons under their jurisdiction. A secondary level of human rights
enforcement takes the form of action by foreign governments and interna-
tional organizations to help, pressure, or coerce governments into fulfilling
their primary human rights obligations. Roughly speaking, the primary or
domestic level of enforcement is directed towards individuals (where these
include, importantly, public officials), while the secondary or international
level of enforcement is directed toward governments.
The ICC regime, as we shall see, operates at both levels of enforcement.
When governments ratify the ICC Treaty, they make a strong, albeit partly
implicit, commitment to uphold the domestic enforcement of those human
rights covered by the law of the Rome Statute. However, if governments fail
to uphold these rights, the ICC is poised to take action on their behalf. It may
do so even against the resistance of governments most immediately
concerned. The very knowledge that the ICC may act in this way is intended
to prod governments into the more energetic primary enforcement of human
rights. Thus the two levels of enforcement are complexly intertwined. We
may nonetheless distinguish between them for purposes of analysis. This
paper is primarily concerned with the secondary or international level of
human rights enforcement.7
The article begins with a very brief sketch of the ICC, followed by a
discussion of its purpose and a summary of US objections. Next I argue that
Locke’s political theory illuminates the difficulties inherent in the global
enforcement of human rights. Then follows an examination of alternative
responses to these difficulties. This leads to a review of some of the main
arguments for and against the ICC, and a conclusion that the balance of
reasons weighs in the ICC’s favor.
II. A THUMBNAIL SKETCH OF THE ICC8
As determined by the Rome Statute, the ICC will consist of eighteen judges
with the power to approve prosecutions, adjudicate trials, and hear appeals;
a prosecutor and one or more deputy prosecutors; and an administrative
staff. An Assembly of State Parties—with one vote per national delegation—
7. I devote attention to the primary level of enforcement in another paper, Jamie Mayerfeld,
The Mutual Dependence of Internal and External Justice: The Democratic Achievement
of the International Criminal Court, Finnish Y.B. Int’l L. (forthcoming). The two papers
may be read as companions.
8. See generally LEILA NADYA SADAT, THE INTERNATIONAL CRIMINAL COURT AND THE TRANSFORMATION OF
INTERNATIONAL LAW: JUSTICE FOR THE NEW MILLENIUM (2002); WILLIAM A. SCHABAS, AN INTRODUCTION
TO THE INTERNATIONAL CRIMINAL COURT (2001), for excellent overviews of the ICC.
98 HUMAN RIGHTS QUARTERLY Vol. 25
elects the judges, prosecutor, and deputy prosecutors, and may remove any
one of them for misconduct. It can also approve amendments to the Statute
for possible ratification by member states.
A prosecution may be started in three different ways: (1) at the behest of
the United Nations Security Council, (2) at the request of a member state, or
(3) at the initiative of the prosecutor, with the approval of a pre-trial
chamber of judges. In the first case, referral by the Security Council, any
adult inhabitant of the world is, in principle, subject to potential prosecution
by the ICC. In the latter two cases (referral by a state party or prosecutorial
initiative), the jurisdiction of the Court is limited to persons who are either
citizens of a consenting state or commit crimes on the territory of a
consenting state.9
Central to the operation of the ICC is the Principle of Complementarity,
which stipulates that a prosecution may proceed only when the state of
primary jurisdiction has proven itself, in the judgment of the Court,
“unwilling or unable” to carry out a good faith investigation and, when
investigation warrants, prosecution of a relevant case.10 This rule gives the
main responsibility for human rights enforcement to national governments,
and restricts the ICC to the role of back-up if states fail to act.
III. THE JUSTIFICATION OF THE ICC
The central purpose of the ICC is the protection of individuals from
genocide, war crimes, and crimes against humanity. The Court aims to
prevent a set of crimes that, potentially and in fact, encompass the violation
of fundamental human rights of large numbers of individuals. It thus forms
one piece of the effort to achieve the global protection of human rights.
Protection of individuals from genocide, war crimes, and crimes against
humanity is sought through the punishment of the perpetrators. These
crimes typically go unpunished because, in the usual cases, they are
authorized or deliberately tolerated by the state or armed movement locally
in charge. Punishment for atrocities is a non-starter where atrocities are the
reigning policy. The ICC is intended, above all, to block the exemption from
punishment that genocide, war crimes, and crimes against humanity may
otherwise be destined to enjoy. It seeks thereby to prevent their adoption as
policy in the first place.
Why punishment? Debate over the purpose of punishment has filled
9. Rome Statute of the International Criminal Court, arts. 12–13, U.N. Doc. A/CONF.183/
9 (1998).
10. Id. art. 17.
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many volumes, without moving us noticeably closer to a consensus. My
own view, which I cannot defend here, is that the obligation to deter
constitutes the core rationale for punishing human rights violations.11
Deterrence is often associated with a utilitarian or consequentialist ratio-
nale: we want to deter crime because we want to avoid bad outcomes in
general. In my view, however, the value of deterrence is more wisely
understood in terms of rights. The right to physical integrity12 implies a right
to certain measures of protection; among these is the establishment of a
credible threat that those who seek the violation of our physical integrity
will be harmed. To make current threats credible, past threats must be
carried out. We owe it to people here and now (that is, if we want to respect
their rights) to punish human rights violations that have previously taken
place.
If we lodge the appeal to deterrence within a theory of human rights, we
can side-step the familiar problems of consequentialist punishment.
Consequentialism raises worries about treating people merely as a means to
the overall good (most vividly in scenarios that involve the framing of the
innocent, or the excessive punishment of the guilty). If we understand
deterrent punishment as part of a general system of rights protection,
however, we have a reasonable justification to offer the violent criminal for
the punishment we inflict on him. Antecedently, he too enjoyed the benefits
of the rights protection system. His continued protection from harm,
however, depended on his respect for the rights of others. He cannot
seriously complain when, in response to his violation of other people’s
rights, we subject him to a proportionate, non-excessive harm in the
interests of collective safety. Warren Quinn puts the point well:
Violations of important moral rights are . . . morally exposed. That is, we may
try to prevent or frustrate them by means that would, in other contexts, violate
their agents’ rights. That morality should withhold some protection from some
seriously wrong actions is easily understood. For these are the very acts that,
morally speaking, should not take place.13
Punishment of violent crime is a moral correlate of the individual right
to physical integrity. To grasp the truth of this connection, it is enough to
11. See Warren Quinn, The Right to Threaten and the Right to Punish, in PUNISHMENT: A
PHILOSOPHY AND PUBLIC AFFAIRS READER 47 (1995).
12. At a minimum, this right entails freedom from homicide, physical and sexual assault,
torture, slavery, and cruel, inhuman or degrading treatment or punishment. But it is also
closely intertwined with the protection of elemental liberties such as freedom of
movement and freedom from arbitrary detention. See the International Covenant on Civil
and Political Rights, arts. 6–10, 12, for the recognition of such rights under international
human rights law.
13. Quinn, supra note 11, at 66.
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consider the common situation in which government agents are free to
commit violent abuses without fear of punishment. Their impunity consti-
tutes a human rights violation in and of itself, because it signifies the utter
defenselessness of vulnerable populations. The familiar cry of human rights
groups to put an end to impunity is best understood, not as a clamor for
retributive justice, but as a demand for the effective restoration of human
rights.
Although, as I have claimed, deterrence is the main justification for
punishing human rights violations, it does not displace, and indeed may be
importantly linked to, other valid justifications. Punishment, as some have
suggested, may have legitimate educative and expressive functions.14
Where human rights are concerned, it communicates society’s condemna-
tion of their violation, and helps actual and potential aggressors to absorb
the lesson that such violation is morally wrong. In addition, the prosecutions
which precede punishment can themselves play a constructive role, beyond
the punishments they authorize. Human rights trials can be the occasion for
an open and honest conversation (painful but necessary) about the past,
ultimately leading to a clarification of the historical record.15 They can also
encourage social reconciliation by modeling a fair procedure for the just
disposition of violent conflicts fueled by bitter political and ideological
divisions.16
Some people may argue that the preceding defense of punishment is
challenged by the widespread use of collective amnesties, total or partial, in
the aftermath of authoritarian rule and civil war. In the context of demo-
cratic transition, the argument runs, judicial prosecutions for the human
rights violations of a previous regime may not be necessary or even
desirable. The question of amnesty is indeed complicated. Without denying
the potential value of punishment as a deterrent, we must also recognize
that weak judicial systems may lack the resources to carry out comprehen-
sive prosecutions, that such prosecutions may undermine democratic
stability if a large percentage of the population is complicit in the abuses of
the former regime, and that an emphasis on prosecution may divert energy
from other, more valuable tasks of democratic reconstruction.
These are weighty considerations, which point out the potential cost of
prosecution. What complicates matters is that they rarely constitute the
principal motivation for amnesty. Most amnesties are extorted by dictators
or warlords as the necessary price for the transfer of power to democracy.
14. See Jean Hampton, The Moral Education Theory of Punishment, in PUNISHMENT: A
PHILOSOPHY AND PUBLIC AFFAIRS READER 112 (1995).
15. MARK OSIEL, MASS ATROCITY, COLLECTIVE MEMORY, AND THE LAW (1997).
16. Id.
2003 International Criminal Court 101
When faced with such an ultimatum, domestic democratic actors may have
little choice but to comply. That still leaves open the question whether
foreign actors, not being subject to the same pressure, should extend their
approval and cooperation to amnesties enacted under duress.17
Should foreign actors and international organizations—for example, the
ICC—support or oppose domestic amnesties for human rights violations?
The answer must depend to a considerable degree on the character of the
amnesty in question and its role in the democratic transition. To pose the
issue starkly: Is the amnesty linked to a fundamental democratic transforma-
tion of society, or does it serve principally to let human rights violators catch
their breath before contemplating the resumption of violations? The chal-
lenge is to prevent amnesties from becoming a form of impunity. They must
be seen to extend only to past crimes, and not create expectations of shelter
for future crimes. Amnesties for past abuses are least objectionable when
implemented by well-entrenched and unintimidated democracies that
commit themselves to building a strong human rights culture and vigorously
prosecute human rights violations in the present. If amnesties do not help
usher in a sharp break with the past, if instead they soften the distinction
between the old regime and the new, they contribute to the endangerment
of human rights.
The historical record of amnesties is mixed. In some countries, such as
Guatemala in 1986, they have failed to stop human rights abuses after the
democratic transition is nominally carried out.18 In other countries, such as
Sierra Leone, successive amnesties repeatedly give way to the renewal of
full-scale violence by their beneficiaries.19 A more encouraging example is
the South African Truth and Reconciliation Commission (TRC), which has
been justly celebrated for its efforts to foster peace, dialogue, and respect for
human rights.20 Forced to promise amnesty in exchange for the transfer of
power, and hampered by an understaffed judiciary, the post-Apartheid
government made a virtue of necessity and channeled its resources toward
17. This question is the subject of a special symposium on the externalization of justice to
appear in the FINNISH Y.B. INT’L L. (forthcoming).
18. See AMNESTY INTERNATIONAL, GUATEMALA: THE RIGHT TO TRUTH AND JUSTICE, AI Index: AMR 34/
026/1996 (10 Sept. 1996), available at http://www.web.amnesty.org/ai.nsf/index/
AMR340261996 (visited 1 Oct. 2002). A subsequent amnesty enacted under the
auspices of the 1996 Peace Accords excluded genocide, war crimes, and crimes against
humanity. Since 1996 there has been a decline in the number of extrajudicial
executions, but human rights activists and community leaders continue to suffer
harassment. See David Gonzalez, War’s Legacy: Many in Guatemala Still Fear Army,
N.Y. TIMES, 26 July 2001, at A3.
19. See Abdul Tejan-Cole, Amnesty under the Lome Peace Accord in Sierra Leone, 9 AFR. J.
INT’L & COMP. L. (2000); Steve Coll, The Other War, WASH. POST, 9 Jan. 2000, at W8.
20. See Paul van Zyl, Dilemmas of Transitional Justice: The Case of South Africa’s Truth and
Reconciliation Commission, 52 J. INT’L AFF. 647 (Spring 1999).
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the public revelation and collective acknowledgment of past wrongs.
Among its other powers, the TRC could grant individuals amnesty for
politically motivated crimes in return for a full disclosure of their deeds. By
promoting open dialogue and an honest confrontation with the past, the
right of victims to be heard, and the collective affirmation of human rights
norms, the TRC sought to remove potential sources of violence in the future.
It reminds us that punishment of aggressors is not the only element, and an
insufficient element in itself, of the protection of fundamental human rights.
One should beware, however, of drawing the wrong lesson from the
experience of the TRC. The conditions that made its achievements possible
may be absent in some other societies undergoing political transition.21 We
should also remember that its success derived largely from the fact that it did
not eliminate the specter of punishment. Perpetrators were encouraged to
reveal their crimes by the threat of prosecution if they remained silent.22
While the domestic context should influence the international
community’s response to amnesties, it must not be the only consideration.
We must bear in mind that amnesties have an external as well as internal
impact. Even if they are not construed as a license to commit future crimes
in the countries where they are adopted, they may encourage such crimes
elsewhere by persuading potential abusers that they will enjoy the benefit of
similar lenience.23 Of course, the opposite argument has also been made:
the fear of punishment may reinforce the determination of human rights
violators to cling to power, perpetuating or redoubling their atrocities in
order to do so. Which of these two possible dynamics should concern us
more? Our answer will largely depend on the optimism with which we view
the future of the human rights movement. If we think that democracy is
globally stagnant or in retreat while dictators and warlords have reason to
feel secure, propitiation by means of amnesty may represent the prudent
course. Hope of amnesty may be necessary to induce secure tyrants to
surrender power. But if we think that democracy is gaining ground and that
the world’s tyrants are vulnerable, the wiser policy over the long term may
be to terrify them into submission. Even the fear of punishment may fail to
stiffen the effective resistance of tyrants whose survival appears doubtful. If
so, fear of punishment gives them a reason to cut their losses by halting or
21. See PRISCILLA B. HAYNER, UNSPEAKABLE TRUTHS: CONFRONTING STATE TERROR AND ATROCITY (2001)
(setting forth a comprehensive study of truth commissions).
22. This feature alone makes the South African example different from almost every other
amnesty. See Ronald C. Slye, Victims as the Heart of the Matter: The South African
Amnesty as Promised in Practice (unpublished manuscript, on file with author). The
South African amnesty especially needs to be contrasted with the blanket amnesties that
several countries have enacted. See Juan E. Méndez, National Reconciliation, Transnational
Justice, and the International Criminal Court, 15 ETHICS & INT’L AFF. 25, 40 (2001).
23. See Thomas Pogge, Achieving Democracy, 15 ETHICS & INT’L AFF. 3, 5–8 (2001).