John Bellinger Responds to My Post

John has kindly agreed to let me post his private response to my previous post about his speech at the Fletcher School.  Before I do, though, I want to reiterate how important it is to not let the US’s refusal to join the ICC blind us to the many significant contributions the US has made, and continues to make, to international criminal justice — and that includes the ICC.  I’ll just mention two ICC contributions here.  First, the Elements of Crimes exist only because the US insisted on them.  Those Elements represent a significant advance for international criminal law, lending the crimes within the jurisdiction of the Court a precision that goes a long way toward satisfying the principle of legality.  Second, as I have pointed out before — and as John expands on below — the US has played an extremely important role in promoting the ICC’s work in Darfur, not least by publicly announcing its intention to veto any attempt to defer Moreno-Ocampo’s investigation of Bashir.

Enough context.  Here is John’s response:

Kevin:  I noted your posting and link to my remarks at Fletcher and the rather vicious string it produced.  Just a couple of comments for you to consider:

1.  I appreciate your acknowledgment of strong US support for the various international criminal tribunals over the last four years, although it is unfortunate that your remaining comments may  lead readers to ignore the substance of my remarks.

2.  Regarding the purpose of the unsigning, you are actually wrong about this.  In 2002, when the President decided, upon the recommendation of the Department of Defense, that the Administration should seek Article 98 agreements to protect US servicemembers, he also decided that the Administration should notify the UN, the depository of the Rome Statute, that the US did not intend to become party to the Rome Statute in order to ensure that the US did not have legal obligations as a signatory, pursuant to Article 18 of the Vienna Convention on Treaties, to refrain from actions that might be deemed inconsistent with the object and purpose of the Rome Statute.  Although you seem to think my statement is new and surprising, Under Secretary Marc Grossman made this point clear in his 2002 statement on “US Foreign Policy and the ICC,” in which he stated that the US action is “consistent with the Vienna Convention on the Law of Treaties.”  I urge you to read Marc’s address, which was the actual approved Administration policy statement.  I am aware, of course, that other Administration officials may have wanted to send a message by “unsigning,” and have said so since, but this was not the principal or stated purpose at the time.

3.  Regarding the Iraqi High Tribunal, I am of course aware of the many problems with the Tribunal.  On the other hand, I don’t think anyone seriously disputes that international criminal justice is best done locally, whenever possible.  Whatever differences other countries and organizations may have had with the Bush Administration over the Iraq war, if and when they had concerns about the quality or process of justice that might be dispensed by the IHT, wouldn’t it have been better to have helped the Iraqis to do better, not to have turned their backs on them?  If the IHT did not do “justice” in Iraq, it was in part because the international community and human rights groups, despite years of urging intervention to address the human rights violations committed by Saddam, ignored the IHT’s specific requests for assistance.

4.  Regarding the ICC, I would note simply that what you refer to as the US “tired objections” to the ICC were in fact the same “significant flaws” that President Clinton cited when he stated that he would not send the Rome Statute to the Senate for approval and would recommend that his successor not do so either.  My point was simply that a new Administration will have to contend with these concerns, which have long been raised by our military.

5.  Also with respect to the ICC, you do not mention what many other observers have mentioned, namely that, despite continued objections to the Rome Statute, the US has taken a balanced and pragmatic approach on ICC issues since 2005, when Secretary Rice became Secretary and I became Legal Adviser — abstaining on UNSCR 1593, stating our willingness to assist the prosecutor in Darfur, not objecting to use of ICC facilities for the SCSL, reiterating each year at the time of the annual UNGA resolution on the ICC our “respect” for the decisions of other states to become party, emphasizing our commitment to the goals of the Rome Statute and willingness to accept a “modus vivendi” with Rome Statute parties, and most recently, opposing an Article 16 deferral of the indictment of Bashir.

Thanks.  John Bellinger

My thanks to John for taking the time to respond.  Comments are open, as always, but I would ask our readers to address the substance of John’s arguments instead of launching into the same tired tirades about his role in the Bush administration.  Such ad hominem attacks are not helpful and simply serve to debase the intellectual and civil tone that we strive for, however imperfectly, on this blog.  I would also add that, in my view, John has always conducted himself with intelligence and dignity in his role as Secretary Rice’s legal adviser — which is quite an accomplishment, given the regrettable legal hand he has been dealt by the Bush administration.  And I have absolutely no doubt that if someone with less integrity than John was in his position, the administration’s policies would be even worse.