NINETY-THREE years ago, at the Paris Peace Conference, Woodrow Wilson put forward a proposal for a Permanent Court of International Justice, saying, “a living thing is born.’’ Not quite. Fierce attachments to narrow notions of national sovereignty, especially strong in Wilson’s own nation, forced a nearly century-long postponement of that birth. Recently, however, a cry of new life could be heard from The Hague, a hint that Wilson’s ideal may yet be realized.
The International Criminal Court issued its first verdict, finding Congolese rebel militia leader Thomas Lubanga Dyilo guilty of forcing children to become soldiers in a war fueled by gold, guns, and lucrative trade. Turning children into uniformed instruments of mayhem is now formally declared a war crime. Coming a decade after the court was established, amid many complaints about procedure, limited charges, and immunity for other Congolese warlords, the verdict is controversial. Indeed, the court itself is broadly criticized. Its investigations to date are mostly focused on Africa, suggesting both an age-old racial bias and a tilt in favor of powerful nations that remain effectively immune. The court has no enforcement mechanism, so numerous indicted offenders remain at large, including Sudan’s genocidal president, Omar Al Bashir. And some argue that despots are driven to savage extremes when ICC charges corner them - as may have occurred with Moammar Khadafy.
Nowhere are complaints about the International Criminal Court raised more vigorously than in the United States, which has refused to join the court. Open hostility to the court draws on the same resolve to protect every inch of American sovereignty that sank both Wilson’s court and his League of Nations; this same resolve now hamstrings US participation even in the United Nations, which America once led. Leave it to Ron Paul to make the point, with characteristic bluster: “The United Nations and the ICC are inherently incompatible with national sovereignty. America must either remain a constitutional republic or submit to international law, because it cannot do both.’’ When George W. Bush “unsigned’’ the treaty that established the court, he condemned, equally characteristically, “a bunch of fellas over there who want to try our guys.’’ Against the fantasy that US troops would be summarily brought before the court, Congress passed the American Servicemembers Protection Act. Since then, under the Obama administration, American attitudes have moved from outright hostility to selective cooperation. But still - international law is for other people.
This country, with its worldwide presence and multiple entanglements, for good as well as ill, could well be a target of a politicized international court. But the court’s founding statutes offer protections against that. And precisely because of America’s global reach, an expanded culture of international law could benefit this country more than any other.
But profound US ambivalence is not the court’s main challenge. Today, the ICC has an urgent role to play in the rescue of citizens who are being brutalized by their own governments. The genocide in Darfur, and now Syria’s war against its own people, make the point. Enforced structures of international law can alone provide an alternative to the paralyzing choice between inaction and all-out war - the great moral conundrum of our era. The court as it exists today does not meet such a standard - as the indicted Bashir’s ongoing atrocities demonstrate - but it nevertheless makes the standard real. And achievable. Even the old bugaboo of sovereignty can yield before the changed meaning of national identity in a wireless world. Transnational jurisprudence can build on the globalized economy. If markets and banks can internationalize, why not courts?
When he signed the ICC Treaty in 2000, while indicating he would not submit it for Senate ratification, Bill Clinton said, “The United States should have the chance to observe and assess the functioning of the court over time, before choosing to become subject to its jurisdiction.’’ The Congolese people, including children robbed of futures and many thousands killed, offer the essential assessment. Imperfect justice is still justice. The world needs this court. It is a living thing, a 21st-century version of what Lincoln called a “new birth of freedom.’’ The time has come for the United States to join the International Criminal Court.