The Self-Defeating International Criminal Court

Abstract

Great expectations greeted the opening of the International Criminal Court (ICC) on July 1, 2002. Kofi Annan captured these expectations when he expressed the hope that the new ICC would "deter future war criminals and bring nearer the day when no ruler, no state, no junta and no army anywhere will be able to abuse human rights with impunity."' Chris Patten, the European Union Commissioner for External Relations, echoed this theme when he stated that the new Court's purpose was to "ensure that genocide and other such crimes against humanity should no longer go unpunished."2 Scores of other world officials, human rights activists, and international law experts made similar predictions. These are unrealistic dreams. They are unrealistic for many reasons. But perhaps the most salient reason is that the ICC as currently organized is, and will remain, unacceptable to the United States. This is important because the ICC depends on U.S. political, military, and economic support for its success. An ICC without U.S. support -and indeed, with probable U.S. opposition-will not only fail to live up to its expectations. It may well do actual harm by discouraging the United States from engaging in various human rights-protecting activities. And this, in turn, may increase rather than decrease the impunity of those who violate human rights. I lay out the mechanisms of ICC futility and perversity as follows. Part I shows why the ICC will be incapable of punishing serious human rights abusers. Part II shows how the ICC will likely lead to less rather than more punishment for human rights abusers. Part III asks why the ICC framers might have designed a self-defeating institution. The Conclusion qualifies the analysis and points to larger lessons.