Inside the International Criminal Court

Question: How effective is the ICJ?

Kal Raustiala: We’ve had a mixed record with it so- but the ICJ- the problem with the ICJ is it’s effective at certain things. What it tends to do, kind of the bread and butter, would be a territorial dispute about where the border is and a river between two countries, and what you kind of need in that situation is just a neutral arbiter. You need someone to come in and for domestic political reasons maybe you don’t want to give up this little island that somebody else is claiming, and the ICJ is very good at sort of just drawing a line and making a decision that seems neutral and acceptable to both sides. The problem with the ICJ is when it wades in to more controversial issues so recently it had a decision about the wall in Israel, it had a decision about nuclear weapons a few years ago, and it tends to have a hard time with those decisions. And so for that reason it’s not as effective. It lacks some of the enforcement powers that we might want. You might compare the World Trade Organization’s court, the appellate body, so that court is considered to be more effective in part because it has at its disposal enforcement measures and it’s got a pretty good compliance record. So when it hands down a ruling and it says to even the United States, “You’re violating a law,” usually those countries comply. So not all international courts are the same and I’d say the ICJ is good at certain things, not everything.

Question: What’s your advice regarding the Rome Statute?

Kal Raustiala: It’s a difficult question because the U.S. does have a unique role in the world and we are far and away the most powerful military power and we are very much viewed as the country that’s going to- when there is something happening, a genocide unfolding, we have the capacity to act. We don’t always act but we have the capacity to act and people do look to us to play that role so we do have some unique concerns that other countries don’t necessarily have. That said, the ICC is widely accepted around the world and I think it would go a long way--  I think many of the concerns against the ICC, the idea that there’s going to be a rogue prosecutor who will go after American service- or that we need--  Congress passed this law, the Hague Invasion Act, so if any American ends up in the brig of the ICC we’re authorized to go in and invade the Netherlands and get them out. I think those kind of fantasies are really unfounded and so far the ICC has been very cautious. And I think it’s again a mostly symbolic issue for us to join because I don’t see--  The ICC’s principle is that if a country tries in good faith its own soldiers the ICC won’t step in and we have a well-functioning military justice system. So I don’t imagine the ICC ruling over Americans but I think symbolically it’d be hugely important and particularly after the Bush administration’s last seven plus years of being seen as a rejectionist of every international initiative, pulling out of the ABM Treaty, unsigning the International Criminal Court Rome Statute, denigrating the Kyoto Protocol. We’ve lost so much good will, and remember after World War II we were really the architects of this international system. We’ve lost so much of that that I think these symbolic steps like signing the Rome Statute would go a long way towards restoring our- I think our traditional image in the world, which is tarnished at this point.

Kal Raustiala: I don’t imagine the International Criminal Court ruling over Americans.

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