Eric Posner has an article at Slate about the International Criminal Court, pointing out that it has been almost entirely useless in prosecuting war crimes and human rights violation. But like the United Nations, the major powers — us especially — made sure that it was ineffective.
The winners of World War II did not repeat this mistake. The Germans were not held collectively responsible for Nazi atrocities. Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.
After the Cold War, the idea of prosecuting warmongers was revived. The civil war in Yugoslavia and the genocide in Rwanda spurred the U.N. Security Council to establish two tribunals to try participants for international crimes. These tribunals rested on a somewhat firmer legal basis than Nuremberg and Tokyo. Yugoslavia and Rwanda had given theoretical consent to Security Council authority decades earlier and so could be considered bound to its resolutions. Still, the Yugoslavia trial could be seen as victor’s justice—an impression reinforced by the fact that the tribunal was deprived of authority to try any Westerners who committed war crimes, such as NATO pilots who dropped bombs on civilians. Serbians in particular claimed that the tribunal was biased against them.
The ICC was meant to put an end to the cycle of doubt. The rosy vision was that all countries would voluntarily submit to its jurisdiction, so no single country could claim that it would be singled out for victor’s justice. The logic is similar to the logic behind arms-control agreements: I concede that chemical weapons are bad, but I will not give up my chemical weapons unless I’m sure that my possible enemies will give up theirs as well. International cooperation is a delicate business in which all the protagonists gradually lay down their knives while keeping an eye on one another to ensure that no one gains a slight advantage by laying down his knife more slowly than the others.
So when the United States, Russia, China, India, Pakistan, Turkey, and Israel all refused to ratify the ICC treaty, the court was crippled from the start. The United States feared that the ICC might pick on Americans, given that an independent body—staffed largely by foreigners—might believe that by singling out the United States, it could establish its bona fides with the rest of the world. Other countries that refused to ratify simply did not want a foreign court meddling in their affairs. They did agree that the U.N. Security Council would have the power to authorize the ICC to investigate and try anyone in the world for international crimes—a provision acceptable to the great powers because they control the council.
Exactly. Giving veto power in the UN Security Council to the US, China, Russia, France and the UK ensured that it would never be effective in doing anything that those great powers don’t want done. The UN is pretty good at refugee relief efforts, small peacekeeping missions in countries no one cares about (and that don’t have resources that the big nations can fight over, of course), and some humanitarian programs. But it isn’t just useless when it comes to larger questions, it is entirely captive to the most powerful countries.
The same is true of the ICC. If the court really had any authority to prosecute war crimes, George W. Bush would have been tried years ago, along with Cheney, Rumsfeld and a few others, for torture and extraordinary rendition. Same with Bashar Assad and many other leaders around the world.