Should the United States join the International Criminal Court (ICC)? Jeremy Rabkin, Cornell professor of government, and John Washburn, convener of American nongovernmental organizations for the ICC, debated the question before a full audience in Myron Taylor Hall, March 12.
The ICC was founded in 2002 as a permanent tribunal to prosecute crimes of genocide, crimes against humanity and war crimes. However, some countries, including the United States, Russia, China and India, have opposed it, expressing concern about politically motivated prosecutions, weak procedural safeguards and interference with state sovereignty.
"The U.S. must realize that the court is now a reality, and it cannot stop it from becoming effective," contended Washburn.
Arguing that the United States should eventually join the court, Washburn declared that he "ruled out" immediate U.S. participation in the ICC. "I am only pressing for a process of increased familiarization, cooperation and participation in the work of the court by the U.S. Ratification does not look possible given the current political environment and the fact that it is perfectly constitutional for the American legislature to force the executive to violate international treaty obligations."
Endorsing a move toward increased convergence with the court, Washburn remarked, "The court can help serve U.S. national interests in [places] like Darfur. Participation in the court's activities is also essential if the U.S. does not want to lose the international influence it currently enjoys."
Rabkin opposed Washburn's stance, saying he believes joining the ICC is unlikely to do much good. "In the event that it does harm, we want to be in a position to say that we never accepted its moral authority."
He argued that the United States should reserve judgment on the ICC at the present time. "An ICC like this never existed before," he said, adding that attempts at imposed tribunals by the United Nations Security Council have been unsuccessful.
Such an international policing system would fail on many accounts, Rabkin continued. "To begin with, it causes a problem of moral hazard. We pretend we have done something when we really haven't done anything at all," and establishing the system may give the illusion of a remedy without actually fixing anything. "Second, it has no troops of its own. If another country decides to send troops, it risks its army being prosecuted by the ICC.
"Finally, in many tragic situations, like Uganda for instance, it is more important to stop the fighting. There is no mechanism within the ICC to facilitate such a tradeoff between peace and justice."
While admitting that the start-up costs for the ICC were enormous, Washburn countered that it would still serve a significant purpose when compared to other temporary courts, which are challenged by the problem of attracting and retaining good staff. Commenting on Rabkin's reluctance to trust the prosecutor's discretion, Washburn noted the various checks and balances within the ICC system. "Every stage of the prosecution is reviewed by the judges."
The debate was moderated by David Wippman, vice provost for international relations. The event was sponsored by Cornell Law School through the Briggs International Law Society, the Berger International Legal Studies Program Speaker Series and the Federalist Society.
Graduate student Kanika Arora is a writer intern for the Cornell Chronicle.