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THE "EMBARRASSMENT FACTOR":
EXPLAINING AMERICAN OPPOSITION TO THE INTERNATIONAL CRIMINAL COURT

Professor M. Cherif Bassiouni
DePaul University College of Law
JURIST Guest Columnist

The International Criminal Court痴 formative stage has now ended, and with it, the euphoria of those who have labored hard to make it a reality. From conception to delivery, a great deal of time has passed, and in the last stages, the number of midwives and putative fathers increased dramatically. If anything else, this is a sign of acceptance, and therefore, success. But an institution such as the ICC does not become a reality because its birth certificate is made part of an international treaty. Facing the realities of existence is as arduous for such an institution as it is for an infant to start crawling, then to walk, and finally to run. Throughout this process, there are necessarily many difficulties and some falls, leaving scratches and bruises that only time will heal.

As of this writing, 90 countries have ratified the Rome treaty on the ICC, but the U.S. remains an adamant opponent, marshalling countries to sign bilateral agreements that undermine the treaty and discouraging other countries from acceding. To many, it is incredible to see the U.S. government acting with such vehement opposition to the ICC. Clearly, this is due to a few ideologues in the current administration, as well as to an overly sensitive military establishment that fears being left holding the bag of responsibility whenever ordered by civilian commanders, including the Commander in Chief. But the opposition of the U.S. is not only due to ideological and military establishment factors, which are concealed behind spurious arguments by authority sycophants. It is due to another political/bureaucratic reality which is peculiar to the U.S.

For lack of a better word, I call this the 兎mbarrassment factor. The U.S. has a low-tolerance for being embarrassed, and in particular, the defense and intelligence establishments, which unlike smaller countries, comprise of quite a number of organizations. Within the intelligence establishment alone, there are several that have a direct role, if not impact, in military decisions. They include the CIA, DIA, NSA, DoD intelligence, and the military intelligence of each of the four fighting branches of the armed forces (Army, Navy, Air Force, and Marine Corps). Each works separately, and is rather jealous of its own sources of information, analysis, and support constituencies in the American political and business communities. The four branches mentioned above also operate with relative autonomy, develop their own strategies, and have their separate political and business constituencies. As a general practice, it is as if each of these military and intelligence bureaucracies operate with quasi-sovereignty. As a result, no one questions the other. Thus, if CIA provides an analysis, its facts are not subject to review or question by other intelligence agencies, and its findings are accepted by the military. This is obviously not absolute, nor even consistently followed, as discretionary judgments are always made. But on the whole, the general rule holds true. For example, if the CIA determines that a location in Belgrade is a Serbian command and control post and communicates that to the Air Force, which then decides to target it, and then it turns out that the location is the Chinese Embassy, who bears the brunt of 兎mbarrassment? Surely, the air force targeting officer and his/her commanders cannot exonerate themselves from responsibility by blaming the CIA. In turn, perhaps the CIA relied on satellite imagery provided by the DIA, and thus it cannot unburden itself from responsibility by citing reliance on the DIA痴 work.

The potential for the embarrassment of the U.S. is much greater than with respect to any other country, because of the diversity of these military and intelligence organizations, and the way in which they work. This is not a problem for other smaller countries, or for countries where the work of these organizations is much more integrated or coordinated than it is in the U.S. The problem is of course, that international humanitarian law does not allow for bureaucratic defenses. Consequently, in the example given above, the Air Force cannot free itself from responsibility by claiming to have acted on information received from the CIA, and in turn, the CIA cannot relieve itself of responsibility by claiming that it reacted in reliance on information form the DIA. A reasonable mistake of fact is a defense under international humanitarian law, but it is not considered a reasonable mistake of fact to simply rely on the representations of another government agency. The user of the information has the responsibility to ascertain its truth, or at least its reasonableness, but the system in the U.S. does not permit such user verification. Consequently, the defense of reasonable mistake of fact would frequently not be applicable in cases where such errors are made because of the source of information which provided it.

Furthermore, the U.S. as the dominant world power, with, under this administration, strong hegemonistic tendencies, is more vulnerable to political embarrassment than smaller countries, as well as countries with smaller national egos. In fact, over the years, there have been a number of individual incidents involving soldiers from different countries in peacekeeping operations who were charged by their own military justice systems with war crimes, without these matters causing the slightest bit of national crisis. In the U.S., the military establishment goes to great lengths to shield its own and cover up its mistakes. This is not a culture of transparency, openness, and willingness to admit mistakes. The rivalry between the services is far too great, and the prospects of losing influence in Congress and receiving greater shares of the military appropriations budget are strong incentives to maintain the culture of cover-ups and silence.

With this administration痴 policy of pre-emptive self-defense, which is nothing short of justifying military action in cases that would have traditionally been deemed aggression, it is clear that no one in the senior decision-making process, as well as in the military, wants to assume the legal consequences of such an ideological political doctrine, which on its face, is contrary to international law. For all these reasons, the U.S. continues to be opposed to the ICC. But that opposition may not last beyond this administration, and as time goes on, the positive experiences of the Court will simply impose it as a social reality.

The challenge will be in the transitional period of the ICC痴 initial phase. How the Prosecutor will decide on which cases to take, and how his office will manage to conduct investigations and prosecutions, will determine how fast the Court will be universally regarded and less challenged by the U.S. If the Prosecutor elects insignificant cases only to assuage the U.S., he and the Court will lose credibility among most governments, and certainly in international civil society. If the initial cases are of high political visibility, they will also produce a backlash, and will thus have a detrimental effect. It is difficult to predict or foresee what such cases will be, and one can only hope that the right type of cases will come about during this initial stage. But if they do not, time is against the ICC, in that the more time that passes with no prosecutions, the more it will be criticized.

Such is the fate of a new organization of that scope and importance. If things were easier, the ICC would not have been that important.

As I see matters, time is on the side of the ICC, because it is an institution whose time has come, and whose need is likely to grow. It has the support of international civil society, and over half the world痴 governments. Whatever difficulties it encounters in its initial stage, or during its early growth period, are likely to be forgotten when it reaches maturity. Who now remembers all of the weaknesses of the Nuremberg and Tokyo trials? We only remember them as landmarks in the historical evolution of the world community痴 journey toward international criminal justice.


M. Cherif Bassiouni is a Professor of Law at the DePaul University College of Law and former chairman of the Drafting Committee of the U.N. Diplomatic Conference on the Establishment of an International Criminal Court.

August 29, 2003

GUEST COLUMNIST

JURIST Guest Columnist M. Cherif Bassiouni is a professor of law at DePaul University College of Law. From 1995-1998, he was vice chairman of the U.N. General Assembly's Committee for the Establishment of an International Criminal Court, and in 1998, he was elected chairman of the Drafting Committee of the U.N. Diplomatic Conference on the Establishment of an International Criminal Court. In 1999, he was appointed by the U.N. Commission on Human Rights as special rapporteur on the right to restitution, compensation, and rehabilitation for victims of gross violations of human rights and fundamental freedoms. Professor Bassiouni is the author and editor of 63 books and 210 law review articles published in Arabic, English, French, German, Italian, and Spanish. He has received numerous honors, including the Illinois Order of Lincoln (2001) and the Order of Merit of the Austrian Republic (1990) and the Italian Republic (1979). Egypt has awarded him the Order of Scientific Merit (1984) and the Order of Military Valor (1956). In 1999, he was nominated for the Nobel Peace Prize for his lifelong work to establish an International Criminal Court.