Challenging the Conventional Wisdom: Another View of the International Criminal Court

Very little has excited the international legal and human rights communities as much in recent years as the prospect of establishing an international criminal court. On 17 July 1998 a statute for such a court was adopted in Rome by an overwhelming vote after much political and legal effort.(1) Yet the International Criminal Court (ICC), as outlined in the statute, cannot possibly function as envisaged. The ICC Statute is based on unrealistic assumptions about the relationship of authority to substantive and a conception of the international legal order that seems unrealistic. In concentrating on the use of (law that is binding because enacted by a lawmaker having the requisite constitutional authority) to provide a tribunal to law as if it were positive law, the framers of the ICC have unfortunately created an organization that cannot do what is expected of it--to bring about justice. Moreover, many of the problems of international security now subjected to a criminal enforcement system cannot be resolved simply by the application of international law. Some social problems are municipal problems--better dealt with on the national level--while some are moral or political problems that are better resolved through the application of remedies provided in the moral or political order, not the legal order. THE MORAL ARGUMENT Justice is a moral concept. Cries for justice usually occur after a war or similar tumultuous event. No one questions that armed conflict itself is atrocious; it results in the killing and wounding of innocents as well as combatants, destroys property and in many cases yields only temporary political results. But attempts to stop armed conflicts though legal means have always failed. In 1928 the civilized world celebrated with joy the Kellogg-Briand Pact, which was supposed to end recourse to war as an instrument of national policy It was followed by two decades of bloodshed and misery. After the Second World War the United Nations Charter required the settling of international disputes by peaceful means and forbade the threat or use of force in international relations.(2) As can be seen, with regard to international struggles such as war, the rules are already in place and have notoriously failed. Today the greater number and extent of atrocities occur wholly within the boundaries of single states like Bosnia or Rwanda. The situation of internal atrocities is analogous to the situation of child abuse within a municipal legal order: everybody condemns it and would like to do something about it, but the conflicting social values involved in placing some institutional oversight over family life, and the difficulties of finding people whom society could trust to make decisions in the best interests of society, make the resolution of child abuse issues too difficult to be satisfactorily resolved in any state in Western society. Now it appears as if the magic solution would be to have the international equivalent of child abuse--human rights offenses--policed by the very system that has failed so obviously in municipal societies: the courts. THE PROBLEM OF JURISDICTION The first question is whether the distribution of authority under international is capable of addressing these situations. The notion that there is universal over supposed universal offenses fails when the concept of is examined closely. There might be universal jurisdiction to prescribe laws--states might tailor their municipal legislation to make criminal within their own legal order the acts of foreigners, such as foreign pirates or slave traders, against other foreigners in foreign territory or the high seas. But no one has ever acknowledged a foreign country's universal jurisdiction to enforce these laws--for instance, to perform an arrest on a foreign vessel outside the territorial waters of the arresting state without the permission of the offender's state or the flag state of a ship. …