The Court of Democracies

by Kelly Andrews, Presidential Fellow

World Federalist newsletter, Summer 2002

On April 11, diplomats from 10 countries gathered in a conference room at the United Nations headquarters. They carried with them thick packets of documents heavy with legal jargon and protocol to be deposited with the Secretary-General. Watching from the crowded floor, from live-feed Internet media players, and from closed circuit televisions in dusty embassy offices were the representatives of the downtrodden: non-governmental organizations, lifetime human rights activists, and mid-level bureaucrats hoping to build stability for their developing democracies. The fifty-year dream of an international court to prosecute and inevitably prevent crimes against humanity became reality in less than 4 years from the conclusion of the Rome Statute, only seven months after the model of democracy was attacked on its own soil. As the leaders of governments and civil society spoke, two themes arose in alarming contrast. First, those member-states that agreed to the terms of rule of law through an independent criminal court overwhelming represented the world's democracies; second, in juxtaposition was a recent victim of such crimes, resting on its laurels of patriotism and sovereignty, that most vehemently rejected this court-the United States.

As one looks over the list of states-parties to the ICC, it reads as a directory of 20th Century conflicts. Countries recovering from bloody civil unrest, some leading to genocide itself, opened their arms to the Court as a means to reconcile and rebuild their ensanguined justice systems: BosniaHerzegovina, Sierra Leone, Mali, Yugoslavia, Nigeria, Cambodia, and even the controversial Democratic Republic of Congo. The Court will empower the participating governments to build transparent judiciaries (locally and internationally) while asserting that no person, president or general is above the law of the people. To participate in the process, governments will engage the best of their judges and lawyers, gaining leverage domestically to legitimize systems that traditionally have been weighed down by nepotism and profiteering. National courts will rise to standards set by the procedural guidelines now defined by Preparatory Commissions in New York. These states have placed their hopes in the International Criminal Court, whose merit will be weighed not only by the number of cases it tries and the number of criminals behind bars but eminently by its significance as a symbol that, yes, the world is watching and, yes, we do care.

Yet, the Court also is a "Who's Who of Democracies." AII but four of the 76 depositors (96% as of July 2, 2002-the deadline to be an initial State-Party) rank as free (ranking "totally free" or "partially free") in the indices created by Freedom House, a non-partisan, non-profit research association that uses indicators of political and social freedom to rank governments and conducts advocacy, education, and training initiatives that promote human rights, democracy, free market economics, the rule of law, independent media, and U.S. engagement in international affairs. This statistic is in marked contrast to assertions by the Bush administration that the Court will be a pawn of vengeful tyrants and half-wit pseudo-democracies against the U.S. A11 members of the European Union are party to the Rome Statute; and nearly every former-Soviet republic has accepted the Court's jurisdiction. On the other hand, a recent statement by the Washington Times suggested that some "high-profile" nations opposed the Court; all-China, Russia, Turkey, Iran, Iraq, and North Korea-are alleged perpetrators of human rights violations and "axis of evil" countries whose activities fall under the Court's jurisdiction.

Underlying this irony that perpetuates the seeming feud between international law and U.S. political interests is the missing component to U.S. foreign policy: democracy. I do not refer to "democracy" as a governmental institution to be imposed as a template in a form of pragmatic, ideological colonialism, but allude to an intrinsic value of the human being and its worth in society and to maintaining the primacy of human dignity above all ideology and power politics. With the end of the Cold War with the Soviet Union, the U.S. had a window of opportunity to assert its moral high ground by promoting democracy around the world. At that moment, we should have shown, as the "beacon on the hill" promised by our founders, our capacity to be truly benevolent champions, not benevolent despots. A disturbing cognitive dissonance has come to permeate our leadership, one that, in the end, will undermine our legitimacy of leadership. This discord will be marked by our absence in peacekeeping missions, in the panel of ICC judges, and in significant UN committees. With the embracing of the ICC by the world's democracies, it would appear that the flame that lit the beacon has been passed on.

International Criminal Court

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