Ten years later, debate continues over U.S. stance toward International Criminal Court


Not long ago, “the idea of an international criminal court was goofy,” according to Jeremy Rabkin. The creation of the International Criminal Court (ICC) has not changed his position. On Thursday, October 8, Professor Rabkin debated  the future of U.S. policy toward the ICC?with Prof. Lori Damrosch in an event hosted by the Federalist Society.

A decade after the Rome Statute entered into force, creating the ICC, the United States is one of few western countries that has not acceded to the Court. Rabkin, who teaches at George Mason University School of Law, hopes it stays that way. “It is important for us to say that we don’t think [the ICC] has any legitimacy,” he said. “We will be better off having a policy of suspicion and disdain. We should hope the ICC goes bankrupt.” To Rabkin, the ICC has proven to be ineffective and unbalanced, involving itself with a series of relatively small African nations while taking little action against the worst human rights offenders. “The whole institution is an exercise in symbolism.”

Damrosch, who is visiting from Columbia Law School, was more optimistic about the potential of the ICC. Although she stopped short of recommending accession to the Rome Statute, she said that the “somewhat blunderbuss way” that the United States has engaged the ICC has been counterproductive. Damrosch says that the American Servicemember’s Protection Act, which prohibits the United States from providing military aid to countries that have ratified the Rome Statute, sends a counterproductive message.

“[The ASPA] included several steps widely perceived as bullying measures,” she said. According to Damrosch, American opposition to the ICC has created a backlash and limited the United States’ ability to influence the ICC. “The U.S. has been shooting itself in the foot,” she said.

Rabkin cast dispursions on the historical roots of the ICC and the tribunals established for Yugoslavia and Rwanda. For Damrosch, the ICC’s origins date back to World War II and the U.S. involvement in the Nuremburg Trials and the International Military Tribunal for the Far East.  “Most Americans are proud of those accomplishments. The effort that is going on now [extends] the legacy of Nuremburg.”

Rabkin views the tribunals that came after World War II in a very different light. “We should not be proud of the tribunals, but the war effort that defeated” the Axis powers, he said. He pointed out that the United States had negotiated the London charter, which set up the Nuremburg Trials, with the other occupying powers, who stipulated that only members of the Axis powers would be put on trial. Rabkin said that, “If you could assure me that the rules would be drafted in Washington and the trials would be conducted by officials responsible to the U.S. President,” he would be more inclined to support the ICC. Rabkin expressed concern that if the United States joined the ICC it could lead to American troops in the field being second-guessed by an international prosecutor with no military experience, enforcing an unestablished and vague body of law. “It is crazy while conducting wars to have an international diplomat looking over your shoulder,” he said.

Damrosch took issue with the assertion that the ICC would operate in a legal vacuum. “The laws of war took hold in the late 19th Century [and the] Geneva Conventions recodified them.” Damrosch admitted, however, that, “This crime of aggression, which is not yet defined, is problematic,” she said.

At one point, Rabkin expressed concern that the ICC “is going to be […] a lynch mob for Israel.” He also argued that the ICC’s exclusive involvement with African countries is demeaning and a poor substitute for real action. “Why did we have a tribunal in Rwanda?” he asked. “Because we didn’t want to stop them.”

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