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Foreign Affairs
Court Order
By David J. Scheffer
To the Editor:
What Ethan B. Kapstein labels "The Corporate Ethics Crusade" (September/October 2001) is, in fact, something much broader and deeper than a campaign driven by self-appointed Northern ethicists. It is a gradual redefinition of the corporate "license to operate" in the twenty-first century.Henry Kissinger's views about the International Criminal Court ("The Pitfalls of Universal Jurisdiction," July/August 2001) provide just one more example of how dangerously close the United States is to becoming the intimidated nation of the twenty-first century. The ICC passes the U.S. constitutional test for an international criminal tribunal. Otherwise, the United States would not have signed the ICC treaty on December 31, 2000. The court will have a full body of due process rights. The treaty does not embrace universal jurisdiction; the ICC's reach is greatly constrained by preconditions to exercising jurisdiction as well as by a policy of deferral to national courts in the first instance. The ICC has the potential to build a more rational, less chaotic, and more limited approach to investigations and prosecutions of high-level officials for alleged atrocities than the process emerging from national courts (including U.S. ones). In time, governments will see the merit of exercising judicial power at home to prosecute genocide, crimes against humanity, and war crimes in order to avoid international litigation — but with pragmatic constraints that discourage use of domestic courts for political vendettas against foreign officials.
The best course for the United States is a "strategy of improving specific clauses," despite Kissinger's desire to negotiate principle. The hard work of remaining actively engaged in the negotiating pit and tightening up the ICC's procedures with treaty-friendly proposals is the most promising path. The United States should use its leverage as a signatory nation to close the gaps in the treaty regime rather than futilely searching for a silver bullet that simply does not exist. Each of Kissinger's proposals is utterly unrealistic. Other governments are not going to vest the U.N. Security Council with the powers he suggests. The United States has a choice: either it can act intimidated in the face of the ICC while its friends and allies take the lead, or it can continue to champion international justice and use its influence wisely to forge a better union of politics and law.
David J. Scheffer
Senior Fellow, U.S. Institute of Peace, and former U.S. Ambassador at Large for War Crimes Issues