Commentary No. 93, July 15, 2002
"Judge, Jury, and Cavalry"
I have used as my title a headline of a story concerning the U.S. government's passionate opposition to the International Criminal Court (ICC), an article which appeared in Australia's leading newspaper, the Sydney Morning Herald, on July 5, 2002. The world has seen recently the following extraordinary set of events. The ICC was established by an international treaty that was signed by the U.S. during the Clinton presidency. Clinton did not submit the treaty for ratification, partly because the U.S. armed forces were very unhappy with it and partly because it had no chance of being ratified by the U.S. Senate. He signed it nonetheless in order to give the U.S. the power to propose future amendments to the treaty.
When Bush came to power, the U.S. went further. Bush "unsigned" the treaty. This may not be legal, but it was done anyway, and in practice the unsigning was merely a rhetorical act. The treaty was due to come into operation only when 60 nations had ratified it. The U.S. had thought that this would not happen in less than ten years, but in fact it was achieved in two years, and the ICC came into formal existence on July 1, 2002. The treaty, as written, applies to all countries whether or not they are signatories. It provides, under specified circumstances and with many safeguards, for the possibility of pursuing people for acts violating the rules of war in a tribunal that will be located in The Hague in the Netherlands.
The U.S. government, in good U.S. slang, went ballistic. It pulled out all the stops. The first concrete issue was the renewal of the United Nations mandate to keep troops in Bosnia, which was due to occur on July 1. The U.S. vetoed this renewal because the U.N. Security Council refused to vote an explicit exemption from the provisions of the treaty for U.S. military and government personnel.
The U.S. has also threatened to veto all other U.N. peacekeeping missions that will come up for renewal or for creation. This includes, for example, the forces on the Israel-Lebanon border which are what keeps Hezbollah somewhat away from the Israeli border, and up to now has been a desideratum of the Sharon government. In addition, a committee of the U.S. Congress has already voted a provision that would bar military aid to any country that ratified the treaty.
With whom is the U.S. quarreling? The so-called "axis of evil" countries are not signatories. China is not a signatory. The principal signatories and leading advocates of the ICC are all of the U.S.'s NATO allies. It is Great Britain and France which led the struggle against the U.S. efforts in the Security Council to obtain a special exemption for the U.S. to the provisions of the treaty. There is talk that, should an American be brought before the ICC in The Hague, a rescue mission would be sent by the U.S. So we are envisaging U.S. marines landing in the Netherlands with hostile intent to "rescue" a U.S. citizen accused of war crimes.
This seems to be an Alice in Wonderland world. What can explain what has all the appearance of U.S. hysteria? It makes eminent sense, however, if one shares the logic of the U.S. hawks. The fact is that the creation of the ICC is indeed a further step in the creation of international law, and any such step is indeed an encroachment on existing sovereignty. It is meant to be that. Of course, as the west Europeans say, the treaty is designed to deal with egregious violations of existing international norms, the kind of crimes with which Milosevich is now charged before a special tribunal. Essentially, the ICC is a permanent tribunal of the same design. It is also true that the present treaty does provide that if an individual is charged with such a crime, jurisdiction lies first with that individual's national courts, and a case can be bought before the ICC only if the national courts do not consider the case. It is therefore highly unlikely that any U.S. citizen would be brought before the ICC at the present time.
But the U.S. says two things. Times may change. And there are plenty of persons in the rest of the world who bear a sufficient grudge against the U.S. so as to bring multiple accusations, one or more of which might eventually result in a case before the U.S. This is of course true. The issue is whether the U.S. wishes to rely upon the "law" to resolve such matters or whether it insists on being "judge, jury, and cavalry" in a lawless world.
The attitude of the present U.S. government has a long history behind it. The U.S. has long had a significant portion of the population and its political leadership who view international law and institutions with a jaundiced eye, indeed a hostile eye. This wing of opinion combines essential isolationism with essential militarism. Before 1941, this point of view had great strength within the Republican Party. (Those Democrats who were "isolationist" tended to be relatively pacifist.) There was of course an "internationalist" wing of the Republicans, associated with Wall Street, big business, and the East Coast, but they were always a minority.
The Second World War made isolationism unpopular and politically untenable. The famous conversion of Sen. Arthur Vandenberg to the new structure of the United Nations constituted the political basis on which the so-called "bipartisan" foreign policy of the U.S. was built in the post-1945 years. Of course, the fact that there was a Cold War to justify the "internationalism" helped considerably. The end of the Cold War marked the end of a commitment by the U.S. right to "internationalism." They have returned publicly to their pre-1941 stance, a combination of isolationism and militarism. In this light, unless NATO is entirely compliant to U.S. wishes, NATO is as much the enemy as the "axis of evil." This is what we are seeing with discussion of the hypothetical sending of U.S. marines to invade the Netherlands.
Of course, this U.S. stance wreaks havoc with everything the European Union (and Canada) are trying to construct as a "world order," in which the ICC plays an important role as an institution to further "human rights." The U.S. hawks have no interest whatsoever in such a world order. They are interested in asserting U.S. unilateral military power, and in imposing this power on everyone, not least on the NATO allies. The idea that a U.S. soldier could be called to account somewhere because he had committed an act violating international law and the norms of natural law is absolutely anathema to U.S. hawks. For, they say, after the trial of Sergeant X will come the accusation against Henry Kissinger or, why not?, George W. Bush.
A last-minute compromise has postponed the issue for one year. But this changes little. One of two things will happen now. Great Britain, France, and the others will bend, the ICC will be dismantled, and the U.S. will prevail as "judge, jury, and cavalry." Or they will not bend, and it may be NATO that will be dismantled. This is not a minor quarrel.
Immanuel Wallerstein
[Copyright by Immanuel Wallerstein. All rights reserved. Permission is granted to download, forward electronically or e-mail to others and to post this text on non-commercial community Internet sites, provided the essay remains intact and the copyright note is displayed. To translate this text, publish it in printed and/or other forms, including commercial Internet sites and excerpts, contact the author at iwaller@binghamton.edu; fax: 1-607-777-4315.
These commentaries, published twice monthly, are intended to be reflections on the contemporary world scene, as seen
from the perspective not of the immediate headlines but of the long term.]
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