John Bellinger Responds to My Post

by Kevin Jon Heller

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.

http://opiniojuris.org/2008/11/16/john-bellinger-responds-to-my-post/

11 Responses

  1. Just a quick response to #2: You cannot excuse the intent and purpose of Bush’s unsigning of the Rome Statute by claiming it was necessary to avoid conflict with our Article 98 agreements.  The Article 98 themselves represent a confrontational rejection of the ICC. They are inconsistent with the Rome Statute because they create impunity for the unspeakable crimes the statute seeks to punish.  These agreements do as little to protect our servicemembers as threats to invade the Hague.
    John, I do believe you are doing your best to leave the office in better standing than you found it.  Any efforts you would make towards negotiating our withdrawl from these agreements would go a long way in that regard.

  2. Agreed!

  3. Kevin,

    Tirade? Ad hominem?

    Facts are just facts, and on information and belief, I’ve just been referred to as “vicious” by someone who is implicated in a number very serious war crimes including the needless deaths of thousands of innocent people. You’ll have to forgive me for thinking something is a little bit backwards there. But leave that aside.

    Mr. Bellinger’s response contains a perfect example of what I was talking about previously where he says:

    “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 service members, 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.”

    How precious that sounds when we’re talking about Donald Rumsfeld, and more to the point, Jim Haynes. I wouldn’t suppose that recommendation came from DoD any more than the 2002.02.07 Geneva memo signed by George Bush was recommended or drafted by Alberto Gonzales. Such recommendations came from Dick Cheney and David Addington if they came from anywhere, as Mr. Bellinger knows better than most.

    And just what “actions that might be deemed inconsistent with the purpose of the Rome Statute” would those be?

    Torture, war crimes, crimes against humanity, and crimes against peace perhaps?

    I’m not vicious Mr. Bellinger — I’m just tired and fed up. I’ve been trying to reason with folks like you for seven years now, and it just doesn’t seem possible. But you do write beautifully.

  4. Kevin,

    I’m in full agreement about the value of a norm of intellectual civility in discussions such as this but I would hope younger readers (i.e., most students) would not infer from your request that ad hominem arguments are, as such, always wrong or fallacious, as an ad hominem argument is not a formal fallacy but rather, when misused, falls under the heading of an “informal fallacy,” meaning a close scrutiny of its particular employment in a dialogue context is essential to determining whether or not it is wrongly (fallaciously) employed. This is explained at some length in several articles and books by Douglas Walton (Cf. Ch. 6, ‘Pesronal Attack in Argumentation,’ in Informal Logic: A Handbook for Critical Argumentation, 1989, pp. 134-171). So it is conceivable (and I’m not in any way impying or insinuating anything in the instant case) that an argument having to do with Bellinger’s role as Legal Adviser to the Secretary of State in the Bush administration could be a perfectly acceptable form of (either abusive or circumstantial) ad hominem argumentation.

  5. Charles,

    If you want to make the (legal) case that John is a war criminal, go ahead.  But it is unacceptable and offensive to simply argue — as you seem to — that anyone who holds high office in the Bush administration is necessarily guilty of war crimes.  That position is not only legally inaccurate, it deprives well-intentioned government officials like John of any incentive whatsoever to oppose the administration’s illegal and immoral actions.  And then everyone loses.

    As to your sarcastic comment about what actions might be deemed inconsistent with the Rome Statute, it is obvious that John was only referring to the possibility that Article 98 agreements would be viewed as inconsistent — and nothing more.  As it happens, I believe (as does the rest of the world) that those agreements violate Article 98 and are an affront to the Court.  But that does not justify (deliberately?) twisting John’s statement into a defense of “war crimes, crimes against humanity, and crimes against peace.”

  6. Patrick,

    God, you’re picky! :)

    Kevin

  7. Kevin,

    Given the following statement on the US State Dept web site…

    Article 98 Agreements and the International Criminal Court

    The Political-Military Bureau at the State Department leads the United States’ worldwide campaign to secure bilateral non-surrender (“Article 98″) agreements protecting American citizens from the International Criminal Court (ICC) and provides the public with information in order to clarify the United States’ position on the ICC.

    … I’d say it’s distinctly more than possible you’re right. The problem is that any such blanket policy can and does have only one real purpose: to subvert the Rome statute, Hague IV 1907, Kellogg-Briand, the IMT Charter, and Geneva 1949.

    I’m also sick and got just little bit POed by the “vicious” crack, so maybe if I went back and re-read everything really carefully I might be willing to give Mr. Bellinger some tiny little shred of a doubt. But that would still leave a problem: the notion the George Bush “decided” any such thing. George Bush doesn’t have any more understanding of this stuff than he does of the doctirine of “military necessity” he fraudulently misrepresented in the 2002 Geneva memo. What he decided to do was to sign a piece of paper on the advice of his aides, and once again, the aides in question were David Addington and Dick Cheny, not anybody else.

    I understood that the only purpose of the PMO was to enable war crimes the day it was issued on 2001.11.13. I understood that they were actually committing war crimes p. 18 USC 2441 for certain the day they issued the White House “fact sheet” announcing the gist of the Geneva memo.

    And I’m just a layman — an international law expert like Mr. Bellinger was certainly in a position to draw the same conclusions from the same facts. Yet here he is, seven years later still serving as an apologist for the the most disgraceful criminals in the history of the United States. What’s well-meaning about that?

    Jim Comey found himself in the same predicament and put the nation ahead of his career.

    Mr. Bellinger is NOT “any” US official, he’s the legal adviser to the Secretary of State, and before that he was the legal adviser to the National Security Adviser, roles that implicate him things like torture, the invasion of Iraq, the detentions and tribunals at Gitmo, the FISA violations, and the endless subversion of both the law and the courts  — even believing that Cheney and Addington have kept him in a box and  the State Department is mostly just a Potemkin Village for the Pentagon outside the routine and trivial.

    I recognize he was a voice of relative moderation, and that he and Rice didn’t have much real say in the decision-making process, but so what? They went along for the ride, and see 18 USC 371:

    “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”

  8. Correct me if I am wrong or if I have misunderstood something but doesn’t Mr. Bellinger use a dualistic approach to the whole ICC issue?
     What I mean is ,
      when it is about USA, we better refrain from ratifying it, which Mr. Bellinger graciously reminds us, is not solely a decision of Bush administration but that of Clinton era as well.
     It is claimed then, that it is all good and dandy, because USA is backing the development and enforcement of IHL, as far as other countries like Sudan are concerned.
     Best Regards

  9. A typo in the above corrected below.

    For me personally, John is a person of interest because of his roles at the White House and his countering of what we know was the advice of his predecessor William Taft IV as Legal Adviser at State.  At a minimum, he is a witness for any potential criminal prosecution – domestic or internationally – on torture.  Again, he made his bed and I am not sleeping in it. 

    And I ask why is it somehow uncivil to state the above.  It may be uncomfortable for John and his friends, but it is not uncivil.  It may not be said in polite company, but that is about acquiescence not about intellectual endeavours.  John was asked to answer Senator Levin and John did answer Senator Levin about things that from press reports are terribly disturbing of which he had direct knowledge.  I am not going to gloss over that point and I do not see why intellectual discussion requires us to gloss over that fact or else we are called uncivil. 

    This reminds me of the kind of difficulty we have had in getting a panel on the question of criminal prosecution of high-level civilians ets at the AALS meeting in San Diego in January.  We have asked a number of people to speak against criminal investigation on the panel from the administration and their supporters and they have all declined.  The AALS then expresses concerns about balance.  We can not make someone speak and are happy to leave an empty chair there for anyone who would wish to step up.

    I think it is just that persons are not comfortable with having friends being called out for their conduct.  Well, I do not expect friends to be comfortable with it.  But, the conduct is the conduct and international law does call us to vindicate certain jus cogens norms.

    Best,
    Ben 

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