The argument seems easy: the International Criminal Court represents a significant step toward a global rule of law, and the United States should be part of it. That’s ultimately right, but the argument is more complicated, and there are political as well as legal reasons for supporting American participation.
The Court will, of course, be used for political purposes. George W. Bush’s administration is right on that point, and it seems silly to deny it. Even in well-ordered domestic societies, the judicial process can be politically exploited: think of the role of the Supreme Court in our last election. In international society, where the rule of law is still a distant dream, politics is almost certain to determine the early course of the ICC. And it is entirely certain that there will be efforts to focus prosecutorial energy on Americans abroad. In many parts of the world, the Court will be viewed primarily as an instrument designed to set limits on (our) hegemonic power. How one feels about that depends, I suppose, on one’s position in the world. Taking a long view, Americans may one day be very happy to see the next hegemon (China, say) constrained by judicial authority. But the debate about the ICC offers liberals and leftists a chance to argue for something more than this: not a constrained but a shared hegemony.
The current American position goes something like this: when war is just and necessary, as in the Gulf in 1991 or in Kosovo in 1999, it is the United States that bears the brunt of the fighting. Our European allies oppose American unilateralism only this far: they want a role in deciding when war is just and necessary, but they are content, once the decision is made, to leave most of the fighting to American soldiers. Americans are supposed to accept the risks of war (and are criticized, sometimes rightly, for fighting at long range so as to reduce those risks), and we are also supposed to accept the legal liabilities. It is American soldiers, and hardly anyone else, who will be accused of war crimes-and they will be accused both when there are legal reasons to think that crimes have been committed and when there are political reasons to pretend that crimes have been committed. Why should we expose our soldiers to this liability when, in fact if not in principle, no other country’s soldiers are similarly exposed? (Actually, Israel’s soldiers will be similarly exposed. Almost every international organization is currently mobilized against Israel, and there is no reason to think that the ICC won’t be. So Israelis might well want the United States fighting from the inside to set limits on the Court’s politicization.)
But the administration’s argument assumes the permanent unilateralism of American war-making. As in Afghanistan, the Bush people prefer to be in full charge, acting alone or virtually alone, consulting no one. They are happy to bring in allied forces, ...
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