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Judging the ICC

The cases for and against U.S. participation in the International Criminal Court.

March 16, 2009

The Nuremberg trials at the close of World War II were controversial in their day. Advocates saw civilized nations imposing just retribution for acts of depravity; critics saw an exercise of victors' justice, with rules of warfare imposed after the fact. From that divisive history emerged a movement to create a permanent international court in which charges of genocide, war crimes and crimes against humanity could be heard -- and a long debate over the wisdom of the idea. In the 1990s, ad hoc tribunals were created to consider the atrocities in Bosnia and Rwanda. And in 1998, after negotiations in which the Clinton administration played an influential role, the United Nations adopted the Rome Statute creating the International Criminal Court.

President Clinton was never fully satisfied with the result, waiting until the closing days of his administration to sign the treaty and declining to send it to the Senate for ratification. For his part, President Bush not only officially "unsigned" the Rome Statute in 2002 but signed laws passed by the Republican Congress intended to abolish the court -- going so far as to authorize the president to invade any country that detained an American on its behalf.

The 108 countries that have joined the court include most of the world's democracies and U.S. allies; our fellow holdouts include the likes of Russia, China, Iran, North Korea, Sudan, Cuba and Saudi Arabia. The court is currently proceeding with cases against officials from four African countries, and this month, in its first such action against a sitting head of state, it issued an arrest warrant for Sudanese President Omar Hassan Ahmed Bashir on charges of war crimes in Darfur. The warrant was heralded by President Obama, who has said that the United States should join the court.

Obama's position has reopened the debate in this country about how best to protect internationally recognized human rights across nations with varying approaches to enforcement of those rights within their borders. The discussion raises complicated questions and continues to divide people of goodwill, including the members of The Times' editorial board. Indeed, we are so evenly divided that we are departing from our practice of presenting a single, consensus view and instead offering our strongest justifications on both sides of the issue.

The case for

The arguments against joining the International Criminal Court are rooted in fear that Americans might one day face prosecution and judgment by foreigners in The Hague, and insecurity about our own legal and political systems being strong enough to prevent that from happening. But the ICC has jurisdiction only in cases in which a suspect's home government is "unwilling or unable" to investigate or try him itself. The court is designed to try genocidal dictators and war criminals from countries in which the rule of law is nonexistent or the courts are in thrall to the regime. The notion that this could apply to the United States is laughable, yet it was the basis of Bush administration objections.

More specifically, opponents of the court worry that if future American leaders pursue terrorists by bending international and constitutional law to the extent that Bush and former Defense Secretary Donald H. Rumsfeld did, they could be subject to prosecution for war crimes. Yet the Rome Statute sets a high bar for an ICC investigation of leadership crimes -- they must involve a high degree of magnitude and criminal intent, which would protect Bush and Rumsfeld from the charges leveled by all but their harshest critics.

If American leaders were guilty of atrocities, our own lawmakers and courts could be expected to properly investigate and prosecute them, rendering the ICC moot. And if the threat of an ICC investigation makes future American leaders think twice before approving extraordinary rendition of terrorist suspects or torture of prisoners -- actions that deeply compromised this nation's core principles and its moral standing in the world -- so much the better.

Court opponents also make much of the fact that suspects are tried exclusively by judges rather than juries. The reason for this is obvious -- how would the court assemble a jury of Americans to try someone in The Hague? -- and the argument that it should rule out U.S. participation is specious. The United States has long been extraditing citizens to foreign countries for nonjury trials.

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