International Criminal Law and the Future
I attended a talk today by Professor Gerald Reamey who spoke on the topic of: "The Winding Road from Nuremberg to The Hague: How America Became Estranged from its Own Creation in the Pursuit of International Criminal Justice." He began with the Nuremburg Trials which he called "a high water mark for our country." It was this post-WWII tribunal, along with the Marshall Plan, that helped establish the US as a high moral authority. The British wanted to summarily execute the Nazi leaders, feeling the evidence was obvious and abundant, while the Russians wanted to use show trials with a predetermined outcome to give the appearance of fairness. It was the US, spearheaded by the thinking of Justice Jackson, that pushed for a legit tribunal. Nuremburg of course went on to set the stage for later war crimes related tribunals.

There was widespread agreement after WWII that a permanent criminal tribunal should be established, but for a long time these efforts were stifled by the Cold War and Russia's veto power on the UN Security Council. While the end of the Cold War eventually came the Rome Statute, a treaty which established the International Criminal Court. The ICC has jurisdiction over the most serious crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. Initially the US was a principal actor in the Court's creation, if not the driving force. The Statute entered into force in 2002, but the US is not a signatory to the treaty. President Clinton signed it in his final days of office, but then President Bush 'unsigned' it. The US cites fears "that its soldiers and government officials could be subjected to politicized prosecutions." The US has been a fundamental contributor to customary international law and a driving force in many treaties. Now we see the US pulling back from the international community, even reneging on treaties we have already signed and ratified. Also, the recently passed Military Commissions Act essentially prohibits judges from considering international sources in interpreting the Geneva Convention.

This withdrawal from the international regime of law is unusual and in my opinion disturbing. I feel that by not participating in this ever-changing area we risk losing our influence on the future of international law. I also think we are beginning to squander some of the good will and moral authority that people like Justice Jackson fought so hard to build.

A special thanks to Professor Reamey for sharing his knowledge.

UPDATE: Maybe we are beginning to lose our influence after all...