Faulty judgment.

The U.S. & an international criminal court 

Washington's opposition to the international criminal court established by the UN majority at a meeting in Rome in July has revealed the intellectual confusion which prevails in the American government and policy community over America's proper role in the world.

The United States had originally urged that this court be created. Secretary of State Madeleine Albright had spoken with enthusiasm about how it could deter future war crimes by making it possible to bring individuals to justice for war atrocities. But by the time the United Nations' members arrived in Rome to debate the court, the Clinton administration had changed its mind, under heavy pressure from the Pentagon. The new American position was that it would support the court only if the United States were exempt from its jurisdiction.

Not only was the United States overwhelmingly defeated, but the court, as created, will have jurisdiction over Americans if they are charged with war crimes in a country which has signed the treaty. The position taken by the United States in Rome split the policy community, Congress, and U.S. opinion. The Washington Post approved the administration's policy. The New York Times called it a "shameful performance."

The case made by the administration was that because the United States is the sole superpower and the "indispensable nation," which others expect to uphold international order, it may sometimes find it necessary to violate international law - in the line of duty, so to speak. It therefore might find itself, or its soldiers, accused of war crimes, perhaps frivolously or mischievously. If the United States is to be the world's policeman, the argument says, it must be exempted from being held accountable to the law. This is defended as a realistic claim, given the way the world works - even if it is absurd in principle.

If the United States stops being the policeman, the argument goes on, the world will be sorry, because not only is no other nation qualified to play the role, no other would be trusted to do so. As Joshua Muravchik of the American Enterprise Institute writes, "everyone knows" that the United States is a "righteous nation." The argument is obviously fallacious as well as fatuous. It says that Washington should be allowed to act as an international vigilante, and be trusted because of its self-evident virtue.

If one looks at the past, there is no reason for the United States to make this argument. It has not in the past had to break the law to uphold international order. All of the U.S. armed interventions since the World War II that have been recognized by the international community as in the general interest, from the Korean War through the Gulf War to the intervention in Bosnia, have respected international law.

The occasions when the United States actually broke international law were in pursuit of narrow U.S. interests, or arose from an American conception of cold-war imperatives which even most U.S. allies refused to accept. These included the invasion of Cambodia and the secret war waged in Laos (both ancillary to the Vietnam War), as well as an unhappily long list of military interventions in the Caribbean and Central America, and some CIA strong-arm work elsewhere.

This is what presents the problem. Under the Rome treaty it is imaginable that Richard Nixon and Henry Kissinger could have been charged with the war crime of international aggression. U.S. interventions in Panama and Grenada might have led to similar charges against U.S. leaders. Yet Americans would feel better about themselves today had the United States never invaded Cambodia. The Panama and Grenada episodes are national embarrassments. The record shows that the country would have been better off respecting international law. None of its past acts of vigilantism produced any useful long-term result. They did the contrary, even in terms of U.S. interests. They certainly did nothing for international order or democracy.

One might say that Washington's arguments are wholly cynical. I do not think this is true. Xenophobia is involved, as in Senator Jesse Helms's (R-N.C.) opposition to the court. But a good many people, particularly in the military, have been convinced by a certain style of self-avowed "tough-minded" political advocacy that in the "real" world, respect for international law is weakness. This leads to the claim that breaking the law is essential to advancing the rule of law, and to the notion that the nations of the UN should name the United States the one nation not subject to international law.

This is indefensible and absurd, as serious people in Washington surely see. The affair has actually undermined Washington's claim to defend world order and lead the world community. It has made the United States the tacit advocate of illegality and vigilantism. Its main opponents in this matter are its principal allies, Canada, Germany, and Britain. The affair has done serious damage to the administration's own policies, as well as to the national interest.