The International Criminal Court was established to take on crimes against humanity that transcend the kinds of investigations that domestic justice systems can perform.
But a record of two convictions in 10 years at a cost of $1 billion has caused many scholars to doubt that a permanent court has made the world a safer place enough to offset the effect on U.S. sovereignty.
A panel of international law specialists took up those topics in an hourlong discussion Sunday to kick off The Washington Times Ronald Reagan Thought Leadership Series, at the Ronald Reagan Presidential Library in Simi Valley, California.
“The Hollow Hope of the International Criminal Court — A Look at Its Record” brought together John Yoo, UC Berkeley law professor, Brian Hook, assistant secretary of state for international organization affairs under President George W. Bush, and Tara Helfman, Syracuse University School of Law professor.
The ICC, formed in 1998 by a treaty known as the Rome Statute, is an independent organization based in The Hague, Netherlands, established to end “impunity for the perpetrators of the most serious crimes of concern to the international community” including genocide, crimes against humanity and war crimes.
“The International Criminal Court is unprecedented,” said Ms. Helfman, “not because it’s the first international tribunal to deal with international criminal offenses, but because it is a permanent body that deals with international criminal offenses.”
But the court, of which the U.S. is not a member, is “structurally incapable of administering equal justice,” she said.
The referral process is susceptible to “the basic oscillations of power politics in the world community,” and the investigations depend on the cooperation of the states under investigation, she said.
Ms. Helfman turns to former Secretary of State Dean Acheson’s observation about “the arrogance of international lawyers” in noting the flawed underpinnings of the ICC.
“International law is at its most ambitious when political, military and diplomatic realities are at their most volatile,” she said, “namely when states are riven with domestic strife or trying to reconstruct after a severe period of domestic strife.”
Asked by event moderator Tim Constantine why Africa seems to be such a hotbed for ICC cases, Ms. Helfman responded, “African states represent low-hanging fruits for prosecutors.”
Mr. Hook told the audience that the U.S. is not a member of the court, “but not for a want of trying.”
Regarding the treaty establishing the court, he noted that “Clinton signed it. Bush unsigned it. Obama tried to sign it and failed.”
Across administrations, ICC shortfalls, he said, were identified as politically motivated indictments, flawed definitions of law and putting too much power in the hands of an unaccountable prosecutor.
Flaws with the treaty that formed the court, he said, remain because of inflexibility on the part of a small group of countries that met behind closed doors and left in wording politicizing it.
During the Sunday talk, the terrorist attacks in Paris were fresh on everyone’s mind. Mr. Yoo used the horrific events Friday to note that peace and human rights never have been fulfilled through a European-style system like the ICC.
“The greatest protector of human rights has been the United States and the United States military,” he said.
As for bringing to justice warlords and others with blood on their hands through an international tribunal, Mr. Yoo said, it just doesn’t happen.
“Dictators stay in power and kill more people after the ICC was created,” he said.