Isn't It Time We Rejoin the World Court? (We Left in 1986)
This self-made exemption from the Rule of Law will seem especially hypocritical as U.S. officialdom plans an international criminal tribunal to place former Iraqi leaders on trial.
This recent isolation of America from global criminal law has received considerable attention. Not so the persistent American refusal to accept the compulsory jurisdiction of the International Court of Justice (ICJ), created largely by American efforts. The ICJ, also based at The Hague, has always been known semi-officially and in popular parlance as the "World Court."
The new criminal court can only deal with crimes allegedly perpetrated by individuals. The role of the ICJ is confined to disputes between or among nation-states and such legal questions as may be raised by international organizations.
The location of the two quite separate courts at The Hague and superficial similarity of their roles have resulted in persistent confusion as to their identity. That confusion has been compounded by the ignorance (or laziness) of headline writers who for the sake of its brevity called the criminal tribunal the "World Court" even before it began to work.
When even minor disputes between nations are settled at the ICJ, there is a gain in the removal of potential irritants that can worsen relations. Some cases present issues so important that the Court's potential role as arbiter can be a significant factor in preserving peace.
The protest at U.S. exemption of individuals from criminal jurisdiction has been widely reported. The continued refusal of the United States to subject its own actions, especially the use of force against others, to judgment by the ICJ has been treated as a non-event.
The president who turned America's back on judgment under international law was Ronald Reagan. His action resulted from fear (especially after prominent condemnation by Senators Barry Goldwater and Daniel Patrick Moynihan) of an adverse Court ruling in Nicaragua's case against the U.S. Reagan withdrew American acceptance of mandatory jurisdiction that had been filed forty years earlier by President Truman, with unanimous support of the Senate.
Republican representative Jim Leach of Iowa led opposition to President Reagan's action terminating consent to World Court jurisdiction. He said of the action of the president (put into office by his party) that "it lowers the United States to the level of international scofflaw…it symbolizes a retreat from support for the concept of international adjudication that dates back to the last century." (Hearing, House Subcomm. International Affairs Oct 30, 1985)
Others agreed. Paul Simon, then senator from Illinois, in an Op-Ed in the New York Times, decried the self-inflicted wound to U S prestige. When the U.S. vetoed an otherwise unanimous Security Council call for U S compliance with the Court's ruling in the Nicaragua case, the L A Times editor's headline was "World Scofflaw"
The Gorbachev regime reversed in 1998 a history of eight decades of Soviet boycott of the Court and its predecessor. The U.S. Congress acted in response. In the 1990 Foreign Relations Authorization Act there was included a call for "efforts to broaden, where appropriate the compulsory jurisdiction and enhance the effectiveness of the ICJ."
There was no action taken to implement this by President G.W.H. Bush, father of the incumbent. Fifteen years earlier as U S ambassador to the U N, the earlier President Bush had officially declared in response to a U.N. survey:
The United States firmly believes that a strong and active international Court
is a central and indispensable
element of an international legal order. Prevention of the use or threat of
force to settle international disputes is essential to the maintenance of international
security and is most effectively assured by the development of an international
legal order and resort to a strong and respected Court.
In July 1993, a congressionally created U.S. Commission on Improving the Effectiveness of the United Nations gave attention to the ICJ. It endorsed compulsory jurisdiction and recommended "to set a standard of leadership, the U.S. consider reaccepting the compulsory jurisdiction of the Court. No response from President Clinton.
During a wide-ranging policy overview conducted in 1994 by the Senate Committee on Foreign Affairs, Senator Christopher Dodd raised "the issue of the World Court" and said: "I think it is sad indeed … that we have withdrawn ourselves from the jurisdiction of that Court. The Cold War is over. I think it important that we re-engage." Secretary of State Warren Christopher responded that he agreed. By his silence, President Clinton did not.
That was about the last time public reference was made to U.S. refusal to accept compulsory jurisdiction. The individuals and groups previously concerned seemed to have abandoned the cause.
Some had given up. Others were engaged in a new issue that had begun to seem urgent by the nineties of the 20th Century: They were distracted by the impact of the savage cruelties during the hostilities that marked the years following the break-up of the former Yugoslavia. They were appalled by the scale of the genocide in Rwanda. Demands to "do something" impacted national leaders and they turned to the Security Council of the United Nations for action.
The Council responded by improvising temporary international criminal courts to try and punish criminal violation of human rights in Rwanda and the former Yugoslavia.
This was not a new idea. Most well known early proposal was the call to "Hang the Kaiser," that was heard after the First World War. Intermittently discussed thereafter among publicists and in law reviews, the notion of criminal trials for war guilt was put into effect in temporary tribunals that sat in Nuremberg and Tokyo after World War II.
To achieve such a result on a temporary basis seemed enough and nothing was done at the San Francisco conference that created the United Nations and the ICJ.
In the last years of the twentieth century, the idea of an international criminal court became something of a cause. There came into being an "NGO Coalition for an International Criminal Court" that attracted many who had been supporters of a return to the ICJ's compulsory jurisdiction. The fruit of their efforts, joined by statesmen from several nations, was the Rome Conference of 1998 and the Treaty for a criminal tribunal of general international jurisdiction.
This was the Court-to-be that was spurned by the Bush Administration. Not only that! So abhorrent was the thought of such a Court that Secretary Powell's State Department launched an international drive directed against vulnerable nations, seeking to have them abstain from joining and withdraw if they had; moreover some were persuaded to agree even to refuse extradition of alleged criminals.
That the Bush administration thus has not only refused to submit to the criminal tribunal, but is actively seeking to torpedo it, has been considered reprehensible. This has sorely disappointed those who believe that crimes against humanity should not go unpunished.
But President Bush cannot be fairly faulted for failing to return the United States to support an International legal system, such as was advocated by his father; one presided over, as the first president Bush urged, by a court to adjudge among the nations.
He was not asked to do so and, not having been reminded, probably never gave it any thought.
Postscript
On May 11, 2003 Theodore Sorenson, President Kennedy's chief speechwriter, delivered the commencement address at American University in Washington, DC. In his speech he called the decision to withdraw from the World Court in 1986 a "mistake," adding:
The World Court, established after World War I, to move disputes between nations from the battlefield to the courtroom, merits our full support. We must avoid a world in which any nation can decide on its own whether it has grounds to attack its neighbor, or seize its neighbor's resources. This country has both a history and an obligation of leadership in international jurisprudence. In today's unpromising, unpredictable, unruly world, stronger institutions of international justice would make the United States a safer place.