A way for America to assert its moral strength
If the US joined the International Criminal Court, it would send a dramatic message to a world skeptical of America's human rights record.
IN "THE ART OF WAR," Sun Tzu, the noted Chinese war strategist, advises military leaders to "embrace unexpected tactics." Although more than two thousand years old, this advice remains sound.
Today, as policymakers struggle to repair America's reputation abroad, they could borrow a page from Sun Tzu's book: The United States should join the International Criminal Court (ICC).
To date, more than 100 nations have joined the ICC, which is the world's first permanent international criminal tribunal. It serves as a court of last resort to prosecute genocide, war crimes, and crimes against humanity when national authorities are unable or unwilling to do so.
The court is set to name a date for its first trial this month, judging whether Congolese warlord Thomas Lubanga recruited child soldiers into his militia. America's allies overwhelmingly support the trial, and the court, but the United States is not a party. That should change.
Unthinkable? Maybe not.
Consider the shift in views on Guantánamo. Former Secretary of State Colin Powell recently said that the detention center at the naval base should be closed, and current Secretary of State Condoleezza Rice, along with Defense Secretary Robert Gates, have lobbied President Bush to do so. If these officials are willing to embrace a controversial move like closing Guantánamo, the time may also be right to consider the strategic benefit of joining the ICC.
To be sure, the Bush administration has been a staunch opponent of the ICC. In 2002, Bush "unsigned" the treaty that created the court, and US diplomats have openly sought to discredit it. Critics assert that the ICC is open to manipulation by America's enemies. They cultivate a foreboding sound-bite: that an anti-American prosecutor might charge a member of the US armed forces with war crimes.
But, paradoxically, it is exactly the vehemence of this administration's opposition to the ICC that makes joining the court viable. If Richard Nixon could open the door to China, then certainly Bush can open those at The Hague.
Call it diplomatic jujitsu. The force of the administration's previous contempt for the court, if reversed, would send a dramatic message to a world skeptical of America's human rights record: If you don't trust America's word, watch the US in action.
This message, sent at a time when America's reputation is under attack, would instantly reframe the debate about the government's commitment to human rights, generate positive press internationally, and begin to restore America's moral standing in the eyes of the world.
By joining the ICC, America can demonstrate its moral strength, commitment to the rule of law, and leadership in the fight for freedom and dignity – in sum, that the US is committed to exercising a positive influence in world affairs.
Since its inception five years ago, the ICC has investigated the recruitment and use of child soldiers in the Congo, the systematic rape, slaughter, and mutilation of women and children in Uganda, and a widespread genocide in Darfur that has killed hundreds of thousands of innocent civilians.
These examples stand in stark contrast to critics' allegations that American soldiers will be hauled to The Hague. To imply that an American soldier could be found in such company is absurd.
The ICC is not going to investigate the United States. What the ICC requires is only that nations not commit heinous crimes or, if their citizens do, that these criminals be punished. This standard is neither challenging nor controversial – it is the essence of the rule of law.
The costs of joining the court, then, are simply the costs of upholding the rule of law. For a nation already committed to that principle, the cost is zero.
America would face a cost, however, if it fails to recognize that joining the ICC is a low-risk, high-reward move – unexpected, and thus powerful. If, as this administration is fond of saying, all options remain on the table, it would be a mistake not to consider this one.
•Alex Little is a lawyer in Washington. He served as a consultant to the International Criminal Court and worked in its Prosecution Division.