22 Dec Scott Horton’s Odd Comment About the ICC
Scott Horton has a typically excellent post today at Harpers.org discussing the perversity of right-wing commentators who defend the use of torture. But I was troubled by the following comment about the ICC, which he offers in agreement with an old editorial by David Rivkin and Lee Casey:
Rivkin’s history is much like that of Reynolds and Goldberg. Back when the Democrats were in power, in 2000, he offered this: “As an alternative to expansive universal jurisdiction and the International Criminal Court, the United States should promote a renewed commitment to the prosecution of ‘international’ crimes in national judicial systems.” (”The Rocky Shoals of International Law,” National Interest, Winter 2000, co-authored with Lee Casey). I happen to agree with this perspective. That is, the International Criminal Court cannot be a forum for the enforcement of the laws of war against the great powers; if that happens, the support upon which it depends for its credibility will collapse. The great powers, and particularly the world’s paramount power, the United States, must enforce the laws itself.
It’s always dangerous agreeing with Rivkin and Casey, whose knowledge of the ICC could fit comfortably on the head of a pin. And indeed, Scott’s comment seems misguided in a number of important respects. To begin with, many of the world’s “great powers” have agreed that the ICC can indeed be a forum for “enforcement of the laws of war” against them: the UK, France, Germany, Japan. To be sure, those countries would be less than thrilled if the ICC prosecuted one of their nationals — but there is no evidence whatsoever that they would abandon the Court in such a situation. On the contrary, they would almost certainly rely on the principle of complementarity (Article 17 of the Rome Statute) and prosecute the perpetrators themselves, divesting the Court of jurisdiction. And that would be a very good thing: as Moreno-Ocampo pointed out when he was sworn in as the ICC’s prosecutor, “the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”
And therein lies the fundamental problem with Scott’s comment. The great powers that have joined the ICC have an incentive to enforce the laws of war against their nationals: the unpleasant prospect of an international prosecution if they do not. By contrast, the “paramount” power, the US, has no such incentive. (Apart from “expansive universal jurisdiction,” that is, the propriety of which Scott doesn’t discuss.) So it should come as no surprise that the members of the Bush administration who ordered, solicited, and countenanced the systematic use of torture will go unpunished for their many crimes. It’s the logical consequence of the American exceptionalism that Scott seems (unusually, for him) to endorse.
Response…
You’re right that agreeing with Rivkin and Casey is a dangerous proposition. I should have known better. But I’m not arguing for American exceptionalism; I am arguing for American self-policing. The United States should be enforcing the laws of war through prosecutions of offenders, and the real test comes over its ability to prosecute offenses that follow from government policy. That’s the best answer to the current dilemma. Prosecution under universal jurisdiction theories in other jurisdictions is a poor substitute, and ICC still wobblier. But my point re the ICC is practical rather than theoretical. I can’t see the institution surviving if it is constantly running around policing after the great powers; they need to be doing the job themselves.
My point here is that Rivkin was in favor of enforcement in domestic courts before he was against it. When Clinton was in power, he thought that war crimes prosecutions of government officials in U.S. courts was the way to go. When Bush comes to power, he believes we should all recognize that these are legitimate policy choices and move on. His attitude is driven entirely by which party is behind the wheel. That’s my point.
While Scott’s self-policing point is well-taken, it also seems a bit fanciful. Could we have expected the Germans to appropriately self-police after WW II? They did not do such a wonderful job with the Leipzig trials after WW I (nor have we done so in these conflicts, some would say). Who would they have counted as responsible for those atrociously errant government policies? What if they had internally blamed “the dead guy” and excused the rest for their misguided loyalty and reliance on lawyers? I agree with the notion that voluntary, good-faith compliance and self-enforcement are key requirements to aspirations of maintaining a rule of law in any legal system, particularly the international legal system. However, law itself breeds legalistic behavior by those seeking freedom from or within its constraints. International law, particularly international humanitarian law – with its status-based approach to conflicts and actors – is highly vulnerable to such behavior (perhaps in many ways like tax law). While I agree that the models provided by Nuremberg and the ad hoc tribunals are poor, I am uncertain of the true basis of Scott’s concerns regarding the “wobbliness” of the ICC and universal jurisdiction. For my money, that lies in establishing appropriate levels of culpability without information protected by national… Read more »
“So it should come as no surprise that the members of the Bush administration who ordered, solicited, and countenanced the systematic use of torture will go unpunished for their many crimes. It’s the logical consequence of the American exceptionalism that Scott seems (unusually, for him) to endorse.” It is important to keep in mind that the American system has worked to criminally prosecute low-level people. So criminal prosecution has occurred as part of self-policing. The question now is whether in the American system we are capable of continuing the criminal prosecutions to the highest-level. Unlike many, I think that we can do such prosecutions by a combination of internal political will and international political will coming to bear against a given administration. I have been struck by the sheer variety of actors in the past two months or so who have come around to speaking about criminal prosecution for torture. The fact that Cheney and Gonzales are going on television to defend themselves of everything tells me that they recognize that the tide is moving towards prosecuting them. So I think with faith and continued hardwork we will get there. I expect a spectacular moment will be when one of… Read more »
A perhaps off-topic sub-question: does this mean that Scott has officially returned to blogging after announcing his retirement several months back? I’d like to update my links if that is the case.
Well Scott never really stopped blogging entirely, he just stopped the amazing day in and day out blogging he was doing at Harper’s for awhile. Now he just does pieces occasionally, at Harper’s, Balkinization, and the Daily Beast — those are the ones I know about anyway.