The international community has made great strides in establishing forums where nation-states bring forth issues and adjudicate disputes in the interest of global cooperation. Most notably, the United Nations and its judicial offspring have been evolving into a global judiciary where lesser states stand theoretically on equal footing with more powerful states during dispute resolution. As the enforcement capabilities of international courts improve, however, America may be more hesitant intervening in international matters.

On December 31, 2000, during the last days of the Clinton administration, America became a signatory party to the United Nations Permanent International Criminal Court ("ICC"). Applauded by the international community, America's preliminary participation lends more legitimacy to the jurisdiction of the International Criminal Court. This Court is the first permanent international criminal court empowered not only to render judgment, but to enforce it as well. This means that the very nations conferring jurisdiction to the Court may find themselves, or their nationals, being held accountable by it. President Clinton stated "[t]he problem is that although the court is designed only to try people if they are not prosecuted at home, the fear in the U.S. is that there's nothing to stop American soldiers abroad from becoming victims of politically motivated prosecutions."1 From a foreign policy standpoint, the existence of the ICC may have a profound impact on America's willingness to engage in humanitarian intervention that might expose Americans to criminal accountability. Because America asserts the most prominent police presence, American nationals assume the greatest risk of having to defend themselves against criminal liability. In light of these concerns, this article examines the state of affairs in the international judiciary and challenges posed to the ICC.

Enforcement Capabilities of International Courts

International courts are widely viewed as having "all gum and no teeth." This is because international courts are not fully capable of rendering judgment and effectuating the enforcement of judgment. In contrast, the Nuremberg trials of Nazi war criminals after World War II offer a model of an international tribunal empowered with enforcement capabilities. The Allied sponsors conferred jurisdiction upon the tribunal, and regardless of the punishment the Allies felt appropriate, the tribunal discharged its duties. The tribunal reduced impropriety by providing the accused with skilled defense counsel to try the cases before a panel of screened judges. By most accounts, the tribunal was successful because of the cooperative efforts of the Allied forces to legitimately determine the accountability of the accused. This meant that Allied support for the tribunal was not withdrawn whether the sentences rendered were death or innocence. In short, the sponsors created a competent international court capable of enforcing its judgments.

Most international courts, however, are still evolving because they lack the power of enforcement. For example, if one party chooses not to appear before an international court or to recognize its jurisdiction, the court has difficulty imposing judgment. In Nicaragua v. U.S.A., Nicaragua brought an action against the United States in the International Court of Justice for mining sovereign waters and orchestrating the military activities of the contras.2 Rather than contest the allegations against it, the U.S. withdrew its support of the court and refused to appear at the proceedings. Conversely, when the U.S. brought an action against Iran for the American hostage crisis, Iran followed suit by rejecting the jurisdiction of the court.3          

To remedy such weaknesses in the courts, in the summer of 1998 the world community convened in Rome, Italy to construct an instrument of impartial and effective justice. Pursuant to Article 5 of the Statute of a Permanent International Criminal Court, the ICC is designed to assert jurisdiction over matters more effectively than courts in the past. First, the statute provides that when a state ratifies the treaty, it automatically accepts the Court's jurisdiction over all crimes within its scope; states do not have the option to pick and choose the crimes for which they will accept the Court's jurisdiction. Second, crimes over which the Court has jurisdiction are clearly identified: (1) genocide, (2) crimes against humanity, (3) war crimes, and (4) crimes of aggression. Interestingly, the inclusion of the latter is of vital importance as it signals the future intention to allow the Court to address what is often the cause of conflict, aggressive action, as opposed to merely the regulation of the conduct of the conflict. Third, the Court may assert jurisdiction in situations where a state's decision not to prosecute results from the unwillingness or inability of the state to genuinely prosecute.4 The objective of the complementarity system is to encourage prosecution within as many states domestic legal systems as possible. The reason for this effort is because the enforcement of international humanitarian law is made more effective with application. The challenge posed to the ICC is that its legitimacy is reliant upon the signatory states fulfilling their pledges and effectuating the judgments of the Court.

Funding of International Courts

While international courts have increased in number, most are not endowed with the financial stability like that possessed by their Nuremberg predecessor. International tribunals are consistently underfunded and the financial strain imposed even activating the ad hoc tribunal often requires the commissions to be overly selective in the matters they investigate and ultimately hear. Funding awarded to the tribunals comes from United Nations sponsorship or from state or private contributions. If the supporting entities reduce or withhold funding, as has been the case with America's reluctance to pay its U.N. membership dues, operations are further streamlined or sometimes outright suspended because tightening of the U.N. budget extends to all U.N. programs. Supporters then commence soliciting funds and lobbying increases the likelihood of bias, despite contribution criteria. One reason the Nuremberg tribunal was successful was because Allied support guaranteed the tribunal to be sufficiently funded. Undoubtedly, sentiments of retribution shadowed the proceedings, but the trials continued uninterrupted until completion. In contrast, some tribunals operate without initially securing the funds necessary to complete trial and as a result have had operations suspended. One of the challenges awaiting the ICC is whether it will be endowed with sufficient funding from the U.N. and other state and private sources to be successfully maintained.

Politics In International Courts

The world community is aware that politics infiltrates international courts and frequently interferes with judicial operations. Though efforts are made to minimize partiality, outside interests inevitably factor into the adjudication process. For example, the powerful nations retain permanent posts in the U.N. Security Council. After World War II, the allied powers strategically positioned themselves during the creation of the U.N. and to this day the implications of victory are as alive as ever. The U.S., U.K., France, China and Russia assert enormous control over U.N. operations and frequently block initiatives and counter measures contrary to their interests.

The political element also frustrates case initiation and the utility of punishment in deterring future crimes. Greater party involvement increases the conflicts of interest, which becomes evident in initiating an action before an international court. Judicial procedure often entails that domestic remedies be exhausted before a court will preside over matters. Seemingly, such delaying actions perpetuate instances of state sanctioned criminality. When a domestic legal system is unwilling or incapable of functioning properly, outside representation must successfully lobby to garner the international support needed to stop or remedy a criminal engagement and bring those culpable to justice. In such politically charged environments, egregious crimes, such as terrorism and crimes against humanity, flourish because the state sanctions the activity and provides protective insulation from international involvement. For example, former Yugoslav President Slobodan Milosevic encouraged loyalists to commit ethnic cleansing of Albanians in the spirit of nationalism and the perpetrators were afforded the protections of the state. International intervention was obstructed by isolationist policies and issues of Serbian state sovereignty. Finally, even after the brutality was exposed, many accused of being responsible have avoided trial at The Hague by the political wrangling of the new Serbia against the very powers that helped dismantle the previous regime. Similarly, members of the terrorist campaign led by Osama bin Laden have eluded capture as they are protected by Afghanistan and other governments who rebuff the efforts of the Western powers and their international tools. Fortunately, Article 17(1) of the Court's Statute enables the ICC to assert jurisdiction where it is evident that a domestic judicial system is unwilling or unable to genuinely prosecute. Ironically, the very statute empowering the ICC is the source of concern to some states.

The U.S. Position

America's reluctance to ratify the ICC treaty is based on the apprehension that America might be relinquishing its sovereignty by conferring jurisdiction to the ICC. Some conservative members of Congress, such as Senator Jesse Helms, adamantly oppose sponsorship fearing it will invite politically motivated prosecutions against U.S. nationals. While America's concern is not without merit, the same capabilities that would enable adversaries to initiate malicious actions against the U.S. could very well be the same tactic used by the U.S. against its adversaries. It is shortsighted to think America would be giving up its sovereignty by ratifying the treaty. Rather, just the opposite exists. America would be greatly extending its sovereignty because the ICC is empowered to assert jurisdiction where other domestic judicial systems fail to function properly. Furthermore, a fully operational ICC serves as a deterrent to criminal activity and shall reduce pressure on the U.S. to be the foremost police power. The ICC must effectively contend with such political elements if it is to be an instrument of impartial and effective justice.

Conclusion

As the prodigy of the international judiciary, the ICC shoulders the burden of surpassing its predecessors. Of paramount importance in this effort is the ICC must successfully exercise its enforcement capability, otherwise it risks being a public relations tool more than a legitimate court of law. If the ICC does, in fact, overcome the many challenges discussed herein, it will be an evolutionary event in global cooperation. Already, the ICC design improves upon the international court model. Because the ICC is permanent it can be activated immediately to hold perpetrators of genocide, crimes against humanity, or serious war crimes accountable for their actions. A permanent court is more cost effective and will ensure uniformity in the development of case law. The ICC also serves as a more effective deterrent than uncertain prospects of costly new ad hoc tribunals that can be tainted by self-interest or manipulation. These attributes provide strong indication that the establishment of a permanent international criminal court is necessary progress in world affairs.

Of itself, these benefits do not dispel America's concern that it may be exposed to politically motivated prosecutions. America's belated participation came on the deadline for it to have negotiating power in the Court's procedures. Participation gives America the opportunity to remain engaged in the development of the Court and enable it to strategically position itself to continue its global involvement, yet without legally conferring jurisdiction to the ICC. So it is that America acted not only for the utility the ICC offers, but the role America must play if it intends on asserting itself as the dominant world power. From its involvement in the Nuremberg tribunals to its leadership in establishing the Tribunals for the former Yugoslavia and Rwanda, the U.S. has a long history of commitment to the principle of accountability. If, however, America is determined to sustain its tradition of leadership, America must ratify the ICC treaty. While full American sponsorship would undoubtedly ensure the ICC's success, with its evolved construction and international support, the ICC is on its way toward successfully establishing itself as the Real McCoy of international criminal courts.

*In 1872, American inventor Elijah McCoy patented a lubricating system for locomotives. Within ten years, his device was so successful that buyers of steam engines would ask if the lubrication systems were the "Real McCoy". Today, in the American lexicon, the real McCoy refers to an idea or a thing that is true, genuine or authentic.

1. http://usinfo.state.gov/ topical/pol/usandun/
00123101.htm

2. 1986 I. C. J. Rep. 14.

3. 1980 I.C. J. Rep. At 9-10.

4. Article 17(1) of the Statute of a Permanent International Criminal Court

Andre A. Borgeas is an associate at the law firm of Luce, Forward Hamilton & Scripps LLP, headquartered in San Diego, California. Borgeas participated in the United Nations Conference for the Establishment of a Permanent International Court in Rome, Italy in 1998. All opinions expressed in this article are those of the author and not necessarily of any mentioned organization.