The ICC Is Flawed and Worth Fighting For

A former colleague from my days covering the collapse of the former Soviet bloc has published a new book on the long and difficult road to the creation of the International Criminal Court. It’s an unabashedly optimistic account, released on the very day US President Donald Trump announced sanctions to destroy it.

Steve Crawshaw’s Prosecuting the Powerful is the well-told story of the ebb and flow of a movement – heroic or meddling, choose your prejudice - to limit the atrocities of war. But it’s also a timely tale of America’s uniquely conflicted relationship with idealism and empire, at a moment when it has chosen to side with the Kremlin and the likes of North Korea over Russia’s illegal invasion of Ukraine, leaving the 80-year-old transatlantic alliance an empty shell .

The book reaches back to 1474, long before Europeans colonized the Americas, with the trial of one Peter van Hagenbach by a court of the Holy Roman Empire. A tribunal held the bailiff of Upper Alsace esponsible for the rape and slaughter of civilians committed by his forces as they put down a rebellion against his tyrannical rule. Yet what emerges from Crawshaw’s narrative is that the very idea of having global treaties to regulate the conduct of warfare, let alone an international court to prosecute leaders who break them, was barely conceivable until the 20th century, and with it the rise of the US, from former colony to superpower.

Without the US, there would have been no Nuremberg trials, the proof of concept for the proposition that holding war criminals to account could ever amount to more than victor’s justice. Britain initially favored summary executions; so, too, the then Soviet Union. They only differed over how many Nazis to kill. Joseph Stalin offered 50,000, Winston Churchill, a few dozen.

Stalin came around quickly, because he’d had good experience at home with the mass show trials he expected Nuremberg to be. Churchill resisted because he feared the same, a “farce.” And the process was, indeed, imperfect. Prosecutors avoided charging anyone with the deliberate bombing of civilians in cities, for instance, because allied air forces were significantly more guilty of that particular war crime than the Luftwaffe.

And yet there was a surprising level of due process, resulting in three acquittals at the main trial of top Nazis, as well as the 19 convictions (12 received death sentences and the others jail time). This, writes Crawshaw, was largely down to the determination of US lawyers.

In addition, without America’s so-called unipolar moment after the end of the Cold War, there probably could also have been no ICC. And yet, American leaders have tried to block, weaken, and delegitimize the court at almost every turn.

Henry Kissinger described the very idea of holding leaders to account over the hard choices they make in war as “judicial tyranny.” Under President Bill Clinton, the US joined the select group of China, Iraq, Israel, Libya, Qatar, and Yemen in voting against the court’s creation. (Israel objected due to an insertion by Arab states that made it a crime to expel populations from occupied territories, a topical clause today).

Clinton in the end signed the ICC’s Rome Statute, chastened by the 1994 Rwanda genocide, though with a string of caveats. His successor, George W. Bush, promptly unsigned it. So in his hostility to the court and other perceived international constraints, Trump is an aberration, only in the sense that he’s no longer conflicted.

Realism, the belief that great nations will always do what it takes to achieve a balance of power, is the foreign policy zeitgeist of our day. Values-based institutions such as the ICC, the European Union, or 2005’s quickly forgotten Right to Protect principle can seem, at this moment, quaint and out of time. All were built to mitigate the consequences of realism’s rule of the powerful.