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Mediterranean Quarterly 11.1 (2000) 55-74
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American Exceptionalism and the International Criminal Court
William S. Shepard
Meeting in Rome in June and July 1998, 130 national delegations concluded six years of preparatory work by signing a treaty to create an International Criminal Court (ICC). 1 The process broke new ground in a number of areas. There was, for example, unprecedented participation by nongovernmental organizations (NGOs), and there was a broadly shared satisfaction that the development of public international law was being institutionalized in a permanent court. It had been fifty years since the Nuremberg and Tokyo trials had provided the first real impetus for such a body, 2 and the world had passed through the intermediate stages of ad hoc tribunals for the former Yugoslavia and for Rwanda, 3 which were created by the United Nations Security Council. But the world's leading power, the United States, which had been a prime mover for the creation of the ICC, joined a tiny minority of largely rogue nations in voting against the completed product, which passed by a 120-to-7 margin. [End Page 55]
The refusal of the United States to sign the Rome Statute left questions whether the new institution, once ratified by the required sixty nations to go into operation, would ever be fully effective. It also raised underlying questions concerning the American posture, which the Clinton administration explained in terms of a series of largely jurisdictional objections. Underlying these objections, however, was the feeling that American exceptionalism was at the root of the problem. Opponents of American accession to the court fear that since the United States supplies the overwhelming majority of national defense requirements for allied endeavors, enemies actual or potential will seek to hamstring the United States through prosecutorial misconduct involving the new ICC. That fear underlies the stated opposition to the treaty of many authorities in the United States, including the leadership of the Senate Foreign Relations Committee, which must pass it. This article will consider the Rome Statute, its place in the development of international criminal law, and the substance of American objections to the treaty at the present time.
The Nuremberg and Tokyo Trials
There is currently a flurry of national judicial activity involving alleged war crimes. The realization that aging criminals from World War II might otherwise escape prosecution has combined with a spotlight of awareness on recent tragic events in the former Yugoslavia, Sierra Leone, Rwanda, and Cambodia. The dark past--and criminal present--are being confronted with legal weaponry. The United States, Great Britain, Israel, France, and Germany have all recently held trials related to World War II war crimes. Germany has also held a trial related to the Bosnian conflict, while Switzerland has held trials relating both to Bosnia and to ethnic slaughter in Rwanda. And as the Pinochet case before Britain's House of Lords illustrates, there is a new willingness to hold leaders responsible for what takes place within their national borders. It was not always so.
The first modern international trials were those held by victor nations after World War II, with German and Japanese defendants. Criticized as [End Page 56] "victors' justice," the Nuremberg and Tokyo tribunals nonetheless were an improvement over Stalin's suggestion at the Yalta Conference that captured enemy officers be shot without trial. In addition to trials for twenty-two major war criminals at Nuremberg and twenty-five at Tokyo, there were also extensive supplementary proceedings in both Germany and the Far East. These tribunals were conducted with the consent of the defeated nation and on their territories; access was possible to both documentary and survivor evidence of the alleged crimes.
These procedures revolved around terms that now are distressingly familiar but then must have seemed new. Their very unfamiliarity caused legal criticism that offenses were being defined ex post facto. The major crimes set forth at Nuremberg included waging aggressive war, crimes against humanity, genocide, and offenses against the laws and customs of war. The Tokyo indictments also made much of Japan's prewar...