The International Criminal Court and a Rogue Empire

By David Swanson

One of the best books published in Canada last year is one of the best books published in the United States thus far this year: “The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice,” by Erna Paris.

It’s appropriate for this story to come to us from our northern neighbor. This is largely a history of the development of international law, culminating in the surprising success of the creation of an international criminal court (ICC). The ICC now has 108 countries as state parties, and the theoretical power to prosecute war crimes by anyone anywhere on earth. The ICC is currently prosecuting a sitting head of state, the president of Sudan. The ICC’s decisions cannot be vetoed by UN Security Council members. It is theoretically independent and loyal only to international law.

The United States played a leading role in decades past in developing international law and moving forward plans for an ICC. But the ICC sprang into being at the very moment that the United States chose to engage in an open war of aggression against Iraq. President Bill Clinton, his representative having failed to derail the formation of the ICC, had signed the treaty establishing the ICC on his way out the door and tacked on George W. Bush’s first signing statement for him. Clinton wrote that although he had signed the treaty he recommended against ratifying it. Bush did him one better and unsigned it. Then his UN ambassador John Bolton set out to weaken the ICC in any way possible, if not destroy it outright. The United States bribed and threatened nations to sign agreements never to use the ICC. And we openly violated international law on a massive scale, threatening the credibility of the court from day one. Yet the ICC advanced, and the behavior of the rogue empire only encouraged other nations to support the international rule of law.

The details of the immediate history are stunning, but the historical perspective is more so. Paris describes the failed efforts and baby steps forward over the centuries that led us to this point. This is history we all should know and understand, especially those of us in the nation that constitutes the gravest threat to the future of international law.

I have a few quibbles with Paris’ account. One is philosophical. She depicts the idea of international law as descending in a direct line almost unchanged from an idea in ancient Greece of divine law. But, while both may be standards of law separate from and claimed to be superior to ordinary law, divine law was either local custom or improvised rules made up as one went along, and such rules were very different from human rights norms as understood today. One important feature of international law is that it is written down, publicly knowable, and theoretically predictably enforceable. But it is also a creation of long cultural development of ideas about rights and justifications. We did not spend thousands of years putting into a treaty what the ancient Greeks already understood. We spent thousands of years thinking it up as well as agreeing to it. This is important because we should be open to advances in the future that we cannot imagine today.

Another quibble, which can be forgiven a Canadian since almost all Americans do the same thing, is that Paris describes a contest between Senator John McCain and Vice President Dick Cheney over whether to criminalize torture in the United States. In the course of this recounting, Paris mentions that torture is forbidden by international law. But she does not point out that torture is and always was illegal under U.S. law, under both the anti-torture statute and the war crimes statute. In fact, while the Cheney-McCain charade was playing out, Bush administration lawyers were worrying about possible future prosecutions under the existing laws. On a more trivial note, this story, like most versions of it, fails to include McCain’s later opposition to “banning” torture.

But this is a terrifically well written and important book that can provide Americans with an understanding of international law and how it relates to domestic law. Gaining that understanding would allow Americans to have happier lives purely as a result of how much laughing they could do in response to the public statements of U.S. officials. For instance, Senator Patrick Leahy has opposed prosecuting torturers or other war criminals because such prosecutions might fail. But nothing could make a foreign or international prosecution more likely to advance and succeed than failed attempts at prosecution here at home.

And nothing is to prevent the ICC from stepping in at any time to prosecute the crimes against humanity that our nation has decided to call policy differences and not crimes at all. Please write to the ICC and ask for indictments of Bush and Cheney. Then buy this book. Then call the president and congress and let them know that you are among the majority of Americans who support international law, and you would like the ICC re-signed and ratified. If they tell you they don’t want Americans prosecuted abroad, tell them there’s one surefire way to prevent that: prosecute them at home.

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