Courting the Rule of Law? The International Criminal Court and Global Terrorism

Abstract

Many concerns have arisen regarding the war on terrorism, including the loss of US credibility and the brutal treatment by the US military of detained suspects. Winning this war is arguably the most important objective for some policymakers and politicians; yet can the United States also begin to reclaim some moral high ground in this struggle? The closure of Guantanamo Bay prison and the withdrawal of foreign troops from Iraq would be critical steps to this end. In addition, however, US foreign policy needs to complement military responses with political solutions, including holding diplomatic talks with the governments of Iran and Syria. Even more importantly, success in the war on terrorism requires an ethical vision that reduces the political tensions that have fueled the terrorist movement. Such an ethical vision would undercut the terrorists' capacity to mobilize and at the same time discourage certain states from making favorable deals with these paramilitary groups. Fulfilling this vision raises several questions. What is the relationship between an ethical international society and the struggle against terrorism? How can terrorism be deterred through the global rule of law? More particularly, how can the International Criminal Court (ICC) help in this regard? This essay argues that the ICC, which the US government has opposed tout court, could play a in countering terrorism. Indeed, such a constitutes a potentially important ethical precondition for combating global terrorism. Global terrorism, as understood in this essay, refers to the global activities of terrorist groups, such as Al-Qaida, that employ global instruments (technologies) to indiscriminately target and harm civilians. In addition, constructive role refers here to the ICC's stated objective of proscribing grave harm perpetrated against civilians, which might, under certain circumstances, apply to terrorists who commit crimes against humanity. It should be stressed that any attempt to couple the ICC with the campaign against terrorism requires that ICC authorities and other policymakers develop a balanced and pragmatic set of policy guidelines. No one wishes to see the ICC lose its independence, to have it succumb to the political ambitions of certain powerful states. Indeed, like any legal institution, the ICC's legitimacy rests on the fair application of its rules of procedure and its independence from outside political influences. However, the ICC also remains dependent on the cooperation of states, which is likely to require pragmatic considerations to address the political risks or overtones of exercising its (assertive) discretionary power. (1) Thus, for instance, while the Congolese and Ugandan governments have voluntarily cooperated with the ICC regarding the surrender of targeted suspects of crimes against humanity, the Sudanese government remains, as of late 2007, unwilling to investigate and prosecute the perpetrators of genocide in Darfur. Clearly, there are bound to be political consequences in high-intensity cases. But such cases should not detract from the larger issue of how the ICC's moral stature and legal effectiveness could contribute to the campaign against global terrorism. Indeed, the time has arrived to take the ICC's potential in countering terrorism more seriously. It is time to consider what ICC involvement would mean for transforming the war on terrorism into a sustained campaign against terrorism. In arguing these points, I shall first discuss the stark US opposition to the ICC, before moving on to address the potential parameters of an ICC in countering global terrorism. The United States and the ICC The establishment of the ICC in July 1998 marked a historic achievement of international criminal law. For many, the creation of this permanent standing court to target perpetrators of gross human rights violations marked the culmination of a long struggle for international criminal justice that began with the 1946 Nuremberg trials. …