A Lawless Global Court

Policy Review, Feb/Mar 2004 by Rosenthal, John

How the ICC undermines the U.N. system

The BUSH ADMINISTRATION'S opposition to the recently inaugurated International Criminal Court (ice) has provoked expressions of outrage and disappointment from human rights advocates worldwide and especially shrill condemnations from European commentators. Critics claim to discern in the administration's rejection of the court a return to American "unilateralism" and proof of the arrogant disregard of the "one remaining superpower" for the wishes of the "international community" or, at any rate, the rest of it. Such rebukes give the impression that the court enjoys a far higher degree of international support than in fact it does. The court is the creation of an international agreement: the so-called Rome Statute, which was famously - or infamously, depending on one's point of view - "unsigned" by the Bush administration in May zoo z. At this writing, 92, states out of the TJZ states (including the Holy see) officially recognized by the U.N. have ratified the Rome Statute. These include the 15 current member states of the European Union.

Now, the last decade has not lacked occasions for the leading European powers to demonstrate the considerable economic and political means at their disposal for securing conformity from their junior partners on matters deemed of common interest. The decision taken, under massive German pressure, in late 1991 to recognize Croatian and Slovenian statehood represented a watershed in this regard. Even leaving aside such informal mechanisms, however, the Treaty of European Union by its article 19 binds member states to "coordinate their action in international organizations and at international conferences" and to "uphold the common positions in such fora." This is not to say, of course, that the process of reaching a "common position" is always an easy one or always succeeds. The Iraq crisis has made this abundantly clear. Indeed, as will be seen below, the ice project also provoked substantial divisions at the interior of the EU even though the protagonists chose at the time to remain discreet. Nonetheless, EU member states are precisely supposed to act as a bloc in matters pertaining to foreign policy and security. As regards the International Criminal Court, in the end they did.

Of the remaining 77 ratifying states, 11 are candidates for accession to the EU. Such countries are, if anything, even more susceptible to informal pressures than the existing EU member states, as for them it is EU membership itself that could hang in the balance. Thus, the European parliament passed a resolution calling on all candidate countries to ratify the statute and, furthermore, declaring any bilateral agreements that might affect its implementation to be "incompatible" with EU membership.

Another three of the ratifying states - Macedonia, Bosnia, and the newly re-baptized "Serbia and Montenegro" - are successor states to the former Yugoslavia that, although not yet officially candidates for EU accession, are already subject in varying degrees to EU supervision if not outright control. Bosnia, to take only the most extreme case, is currently ruled, for all intents and purposes, by a "High Representative" who is, in effect, appointed by the EU and who, since Paddy Ashdown's assumption of the post in May zooz, is now also the EU'S "Special Representative" to the country. EU officials never tire of repeating that it is the "destiny" of all these countries someday to join the European Union.

If one adds Albania - which ratified the statute on the very day last January that it officially opened negotiations on a "Stabilization and Association Agreement" with the EU - this gives altogether z9 ratifying states that are either current or prospective members of the EU. Thus, of the remaining 153 generally recognized states in the world, only 6 3 have up to now ratified the Rome Statute. These latter notably feature some of the world's smallest countries: San Marino, whose z7,000 inhabitants rank it as the third smallest state in Europe (after the Holy see and Monaco), and Nauru, proudly billed in its own publicity material as "the smallest republic in the world," with just over 12,000. Seven of the ratifiers taken together (San Marino, Nauru, Andorra, liechtenstein, Dominica, Antigua and Barbuda, and the Marshall Islands) have a population of roughly 347,000 - which is less than the population of New York's smallest borough of Staten Island. On the side of the non-ratifiers, by contrast, one finds India, with its billion inhabitants; China, one and a quarter billion; Indonesia, 230 million; Russia, 150 million; Japan, 125 million; and, of course, the United States.

As the numbers cited suggest, the ice is by no means a project of the "international community" to which the United States "unilaterally" has put up resistance. As it was originally conceived by the UN'S International Law Commission, the ice project aimed indeed to attract a broad consensus of the world's states, and it initially enjoyed the vigorous support of the United States.1 This consensus-based approach was, however, derailed at the 1998 Rome Conference at which the court's statute was finalized. In the form in which it emerged from Rome, the ice is, more humbly and realistically, just a project of the European Union, for which the EU has succeeded in rallying support among countries that, for the most part, due either to their small size or to their extreme poverty and large external debt, cannot seriously be regarded as independent players on the world stage. Alongside the world's smallest countries, the ratification registry also features many of its most highly indebted poor ones (Bolivia, Mali, Sierra Leone, Djibouti, etc.). Not surprisingly, on closer inspection, these turn out almost invariably to be privileged beneficiaries of European development aid. With very little to lose and significant financial reward to gain from demonstrating their political "worthiness" of EU assistance, more such countries can be expected to join the court in the future.