the debate among senior U.S. military officials seems to be shifting away from staunch opposition, and a fresh assessment of the court seems to be underway.I have made clear numerous times my general skepticism about international legal bodies such as the ICC. I am not convinced that international tribunals are the most efficacious or just solutions to most problems. However, I have also made clear that I would like to see international organizations develop, in some way, in to stronger institutions that are capable of enforcing some kind of international law, including the ICC specifically. If the US can enter the ICC in a way that will not hinder its ability to project force, when needed, around the world, than US accession to the Court can provide increased legitimacy both to the Court and to the US as well.
The new attitude has been prompted in part by the court's record since it began operations three years ago; Chief Prosecutor Luis Moreno-Ocampo, an Argentine, has dismissed hundreds of petitions for cases against the United States. The cases were turned down for lack of evidence, lack of jurisdiction, or because of the United States' ability to conduct its own investigations and trials. Out of some 1,500 petitions to the chief prosecutor, almost half accused the United States of war crimes.
In a letter made public last year, Moreno-Ocampo's office said it was throwing out 240 such cases concerning the war in Iraq. Reviews of each claim determined that none fell within the court's jurisdiction, his letter said, because the United States is not a signatory.
A congressional study released in August said the ICC's chief prosecutor demonstrated "a reluctance to launch an investigation against the United States" based on allegations regarding its conduct in Iraq.
It will not, however, become a panacea to the moral failings of international politics; powerful states will still be free to either remain outside of ICC jurisdiction, block investigations, or simply ignore the findings of the Court. As I mentioned in my series of "Big Stick" posts back in July, the US must work hard at building a web of institutions that connect states to one another. If institutions like the ICC are to have meaning even with US membership, then states like Russia and China should suffer for their non-participation or non-compliance. The US and other Western states must find ways to make participation in the global economy contingent on behavior in other fora; if you fail to meet your obligations in the ICC, for example, the WTO could authorize trade sanctions. Only when law is backed with sanction can it have meaning.