A Plea for True U.S. Leadership in International Criminal Justice
On April 1, 2021, the Biden administration revoked Executive Order 13928 that formed the legal basis under United States law for the Trump administration to impose financial sanctions against personnel of the International Criminal Court (ICC). These sanctions constituted an unusual and extraordinary assault by the United States on international justice. Therefore, on the premise that a rules-based international order is something worthy of preservation, the decision to end this assault is to be welcomed.
At the same time, the decision to revoke the sanctions, in and of itself, does not imply a fundamental change in U.S. policy vis-à-vis the ICC. In fact, Secretary of State Antony Blinken, when announcing the revocation of U.S. sanctions, confirmed the “longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.” On a more positive note, Blinken indicated the Biden administration’s willingness “to engage with all stakeholders in the ICC process” to address U.S. concerns. During the Universal Periodic Review Process before the United Nations (UN) Human Rights Council, the U.S. government indicated the possibility of cooperating with the Court in such “exceptional cases” where U.S. interests might suggest doing so.
The future U.S. posture vis-à-vis the ICC that emerges from these statements reflects the continued failure to accede to the ICC Statute and the persisting legal opposition to the jurisdiction of the ICC over nationals of non-State Parties pursuant to Article 12, paragraph 2, littera a of the ICC Statute. This is coupled with a determination to bring the practice of the ICC in line with the U.S. legal position (through engagement with ICC stakeholders rather than intimidating the Court’s personnel through the imposition of sanctions), and to cooperate with the Court when, exceptionally, it is consistent with U.S. interests.
This situation is, to put it mildly, not overly promising. Specifically, it is not overly promising with respect to a possible future U.S. contribution to better realize the international community’s interest in establishing an effective and legitimate global system of criminal justice to respond to genocide, crimes against humanity, war crimes, and aggression. Nor is it overly promising with respect to the praiseworthy ambition of leading “support for the rule of law, access to justice and accountability for mass atrocities,” to which Blinken referred in his statement announcing the abandonment of the U.S. sanctions policy.
After explaining why this path, if it continues on the same trajectory, will likely be fraught with problems, this post suggests that a better avenue would be for the United States to reclaim its mantle as a leader in global justice. The United States has, after all, a long tradition of global leadership in international justice. Some key points of that leadership are highlighted here, as well as possible reasons for the U.S. objections to joining the ICC. Finally, it ends with two suggestions: the risks associated with U.S. accession to the court are limited and could be mitigated further through engagement “from within.” Any remaining risk would be outweighed by an enhanced respect for the most fundamental international legal rules of conduct that, in the long term, would result from United States leadership in global justice by the power of example.
Leaving an Old Battleground
The U.S. view that Article 12, paragraph 2, littera a of the ICC Statute is legal overreach to the extent that it pertains to non-State Party nationals, is unpersuasive as a matter of existing (general) international law. For this reason, it is unlikely to be adopted either by the ICC or the International Court of Justice. It is therefore difficult to see how the ICC could bring its judicial practice in line with the U.S. view as long as the existing legal framework remains in place. Addressing the U.S. opposition to the jurisdiction of the ICC would therefore, rather than being legally required, entail a policy decision to rewrite the jurisdictional compromise reached at the 1998 Rome Conference establishing the ICC. However, undoing this compromise would significantly weaken the global system’s international pillar for the enforcement of ius puniendi and would increase the system’s dependence on the UN Security Council. Essentially for this reason, the States Parties to the ICC Statute have consistently rejected the idea of rewriting the jurisdiction of the Court. It is unlikely that these States could now be persuaded to change direction. Consequently, the announced U.S. engagement with ICC stakeholders promises to remain a thorny path as long as it includes, as a central element, questioning the jurisdiction of the Court.
Moving Beyond an Instrumental Approach
In policy terms, the Biden administration’s emerging position thus far indicates an intent to take an instrumental approach toward the ICC that makes cooperation dependent on ICC activity being in harmony with U.S. interests. Such a policy of selective support may indeed serve the short-term interests of the United States. Moreover, adopting an instrumental approach toward an institution established by a treaty that one has not accepted as legally binding is, of course, not impermissible as a matter of international law.
Such an instrumental approach, however, is irreconcilable with the U.S. ambition to act as a leader with respect to international criminal justice. In the statement announcing the revocation of the U.S. sanctions, Blinken recalled the following:
Since the Nuremberg and Tokyo Tribunals after World War II, U.S. leadership meant that history permanently recorded fair judgments issued by international tribunals against justly convicted defendants from the Balkans to Cambodia, to Rwanda and elsewhere. We have carried on that legacy by supporting a range of international, regional, and domestic tribunals, and international investigative mechanisms for Iraq, Syria, and Burma, to realize the promise of justice for victims of atrocities. We will continue to do so through cooperative relationships.
Tradition of U.S. Support for International Criminal Justice
The pride that the Secretary of State takes in U.S. support of the evolution of international criminal law and international criminal justice is warranted. Indeed, it is difficult to think of a State that was more influential than the United States at the hour of international criminal law’s birth at Nuremberg. Moreover, the United States was instrumental in its re-birth through the establishment of the two ad hoc international criminal tribunals in 1993 and 1994, by the Security Council. Blinken is right to remind the world of the fact that U.S. support for the enforcement of international criminal law did not stop there. He could have added a long list of impressive U.S. nationals who, since the 1940s, have left their personal imprint on the evolution of international criminal law and international criminal justice.
Let us briefly recapture the essentials of the legacy. On the basis of the London Charter, the Nuremberg Judgment introduced the concept of crime under (general) customary international law—the concept of international criminal law in its strict sense—into the international legal order. This implied the recognition of an international community interest in prosecution. Although the idea that had already surfaced during the Paris negotiations after the Great War, it had not been yet embraced by the United States. In 1947, however, in US v. List et al., one of the judgments delivered subsequent to Nuremberg, a U.S. military tribunal recognized the global interest underlying the concept of international criminal law in the following explicit terms:
An international crime is such an act universally recognized as criminal, which is a grave matter of international concern and for some valid reason cannot be left to the exclusive jurisdiction of the state that would have control over it under normal circumstances.
In his opening speech at the Nuremberg trial, the charismatic U.S. Chief Prosecutor Justice Robert Jackson explained the need to displace the conduct of proceedings against major German war criminals from the exclusive jurisdiction of Germany. In doing so, he rightly recalled the experience of Germany’s unwillingness, after the Great War, to genuinely investigate the war crimes committed by German soldiers. In 1993, the United States, under the leadership of its Permanent Representative to the UN Madeleine Albright, decisively helped convince the world that, in view of the crimes under international law committed in the Balkans, the enforcement of international criminal law could not be left to the exclusive jurisdiction of the States directly involved, but required the establishment of an international criminal tribunal.
Once the legacy of the Nuremberg and Tokyo trials had been revived by the establishment of the international criminal tribunals for the former Yugoslavia and for Rwanda, it proved impossible to contain the seeds for the universal application of international criminal law that had been sown. Nobody had planted those seeds more eloquently than Jackson. In his opening speech at Nuremberg, he famously made the point that Nuremberg was intended to set a legal precedent applicable not only to the vanquished, but to the victors as well:
The ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn, aggression by other nations, including those which sit here now in judgment.
While this refers only to what is now called the crime of aggression, it is clear that the appeal to the idea of equality before the law emanated from a deeply felt sense of justice. This appeal should apply to the other crimes under international law with equal force. More than any other, Jackson’s opening statement at Nuremberg testifies to his conviction that international criminal justice must be grounded in the vision for a legitimate legal regime rather than be used for instrumental purposes.
The Security Council, in its present composition and decision-making procedure, cannot fulfil the shining promise of equal enforcement of international criminal law that Jackson gave to the world in the name of the United States. On the contrary, the ICC, despite its undeniable imperfections, is the first international criminal court to enjoy, through its permanence and institutional design, a credible universal orientation. Therefore, the establishment of the ICC, rather than deviating from the U.S. legacy on international criminal law and international criminal justice, embodies the vision of a legitimate legal regime that the United States laid out through Jackson’s momentous Nuremberg speech. That the ICC is viewed precisely that way by Benjamin Ferencz, the last surviving U.S. prosecutor at Nuremberg, probably provides more powerful authority for the plausibility of that statement than any further scholarly argument.
On the U.S. Policy Objections to the ICC
But if this is so, why does Secretary of State Blinken’s announcement not live up to this most impressive aspect of the U.S. legacy?
No Trial By Jury
Apart from the already mentioned U.S. legal objection to the ICC’s jurisdictional regime, U.S. Congressional findings contain another explicit reason for not joining the ICC Statute: the ICC’s procedural law does not foresee a trial by jury. This, however, is not a convincing consideration. In view of many differences in national procedural laws, it is not a consistent position to support international criminal justice on the one hand, and on the other to make one’s participation in such a justice system dependent on that procedure’s complete congruity with one’s own national law. Procedural compromises are inevitable. And at the Rome conference in 1998, the very able U.S. delegates from the Justice Department certainly left their mark on the law governing the proceedings before the ICC.
Definition of Crimes?
Importantly, the United States does not appear to have insurmountable objections to any of the definitions of the crimes under international law contained in the ICC Statute. This is unsurprising in view of the fact that U.S. delegates from the Department of Defense played a crucial role throughout the negotiations in ensuring that the formulations contained in the relevant texts—especially those regarding war crimes—did not exceed customary international law and were thus ultimately embedded in a universal consensus. Accordingly, the U.S. delegation joined the consensus on the Elements of Crimes.
Retaining Liberty not to Investigate One’s Own Nationals?
This brings us to the objection of the Secretary of State to the decision of the ICC to include U.S. nationals into the investigation in the “Situation of Afghanistan.” As is well known, the ICC Statute, in line with the U.S. position during the negotiations before and in Rome, takes account of any potential national interest in conducting proceedings against its own nationals at home rather than having those nationals appear before the ICC. Accordingly, pursuant to the principle of complementarity, the ICC included U.S. nationals in the investigation into the “Situation in Afghanistan” only because, as they stated, there was no indication of genuine investigations in the United States.
The U.S. opposition to the ICC’s exercise of jurisdiction in the “Situation of Afghanistan” thus appears to be coupled with the decision not to conduct a genuine criminal investigation at all. This suggests an implicit reason for the continued U.S. reluctance to move beyond selective support for the ICC. Perhaps the United States wants to retain the liberty not to investigate U.S. personnel in certain cases even when there are grounds to believe that crimes under international law have been committed.
Legal questions aside, such a policy stance would constitute a departure from Jackson’s grand design of principled U.S. support of international criminal law and international criminal justice. For this support to be principled, it must include proceedings against one’s own nationals if warranted. In his statement, Secretary of State Blinken recalls the fact that “history permanently recorded fair judgments issued by international tribunals against justly convicted defendants.” The reference to the concept of fairness is of crucial importance here. But demanding fairness extends beyond ensuring fair proceedings against nationals of other States. It must include a willingness to accept investigations with respect to the conduct of one’s own nationals where warranted. Such acceptance is not an easy matter for any State. But the current example of Australia’s investigation into war crimes allegedly committed by Australian special forces in Afghanistan shows that a State can enhance, rather than damage, its reputation by not shielding itself from critical scrutiny.
Risk of Investigation Contrary to bona fide U.S. Legal Evaluation
There is probably one far-reaching policy reason that explains the reluctance of the Biden administration to fully live up to the promise that the United States gave the world at Nuremberg. While the principle of complementarity leaves States with primacy, the ICC retains the final word in the case of controversy about the willingness and ability genuinely to conduct national proceedings. Obviously, the Court needs this decision-making power not to be utterly toothless in cases in which States merely pretend to conduct national proceedings. And, in view of the ICC Statute’s emphasis on States’ priority right to conduct the relevant proceedings, there is reason to expect the Court, in genuine borderline cases, will defer to a bona fide judgment made at the national level. Yet, honesty requires acceptance of the possibility that the Court might, in rare cases, feel bound to deviate from a bona fide national decision.
Perhaps it is this concern about a lack of control in certain hard cases that best explains the reluctance of the Biden administration to move beyond an instrumental approach to the ICC and to fully embrace this institution for what it is: the best possible institution to date for the direct enforcement of the international community’s ius puniendi.
It would be too easy to dismiss this concern outright. United States leadership is in demand on many fronts and not too infrequently this includes the use of the military. Thus, the risk of being exposed to allegations of war crimes is significantly greater for the United States than for most other nations. Therefore, to join the ICC Statute would risk a legal requirement for the United States to cooperate with the Court in proceedings against U.S. nationals, including, in particular, members of the U.S. military, contrary to a bona fide U.S. judgment. Moreover, despite a wealth of institutional safeguards, the ICC is not infallible. An honest plea for true U.S. leadership in international criminal law and international criminal justice should not deny that risk, but explain why it is worth taking it. Two considerations in that direction are presented as follows.
The Case for Leadership by Power of Example
First, the risk described above will remain low as long as there is a genuine intent to conduct U.S. policy within the confines of international law. By joining the ICC Statute, the United States could do a number of things to work effectively toward further reducing that residual risk. For example, it could present an experienced U.S. judge, not prone to the temptation of judicial activism, for election as a judge at the ICC.
In addition, the U.S. government could make its voice heard within the Court’s Assembly of States Parties in support of a prosecution policy that respects the ICC’s mission to deal exclusively with situations of crimes under international law of indisputable gravity. In short, the United States could do from within, what Secretary of State Blinken proposes to do from the outside. Whenever the United States has genuinely engaged in the negotiations regarding the ICC, U.S. pleas for moderation and realism have not gone unheard. The addition of two “understandings” of the definition of the crime of aggression—emphasizing its high threshold—constitutes the most recent evidence for the effectiveness of U.S. initiative. There is thus ample reason to believe that the other States Parties and the Prosecutor—while not necessarily accommodating U.S. concerns completely—would listen with great attention if the United States, as a State Party, called for moderation and realism in the exercise of the jurisdiction of the Court.
Second, the risk of having to accept a divergent judgment by the ICC in an exceptional situation is significantly outweighed by the benefits of a U.S. accession to the ICC Statute. Those benefits are neither short term nor immediately tangible. The core benefit would consist of an enhanced respect for the relevant fundamental international legal rules of conduct that would result from the assumption of true, principled, U.S. leadership in international criminal justice. At the same time, by joining the ICC Statute at a moment in time where neither China nor Russia have done so, the United States would make an important step to establish itself as a global leader not “merely by the example of its power, but by the power of its example” (to use President Biden’s phrase).
At the opening of the Nuremberg trial, Jackson famously declared:
That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.
These words still resonate today. As we have seen, Jackson, on the same occasion, recognized the need to allow international criminal law to be applied against U.S. nationals as well in order for it to serve its useful purpose. May it therefore be submitted that, if the United States decided to accede to the ICC Statute and thereby subject its enforcement of relevant rules to international judicial scrutiny, this would once again constitute a tribute paid by power to reason. The historic significance of such a tribute would exceed the decision to conduct the Nuremberg trial—and this simply by fully embracing its underlying vision.
Claus Kreß is a Professor of International Law and Criminal Law. He holds the Chair for German and International Criminal Law and he is the Director of the Institute of International Peace and Security Law at the University of Cologne.