Contracting Around the Security Council

by Kenneth Anderson

As we get closer to the review conference on the ICC, many of us have been watching, and perhaps commenting on, ways in which the US might or might not take part as an observer.  It seems certain that the US will be an observer at the review conference, and the primary issue on the table for the conference is the crime of aggression.  My own view of this is that the whole effort is a mistake – essentially for the reasons that Michael Glennon lays out in his fine new Yale International Law Journal article, The Blank Prose Crime of Aggression.  However, as I remark at the end of this post, whatever one’s prescriptive views, descriptively the effort appears to raise questions about “contracting around” the Security Council in a changing world but un-amendable UN.I am no fan of the ICC, of course,  a student but not an enthusiast of the UN, and only a luke-warm fan of the Security Council.  On the other hand, occasionally someone not part of the church can see problems not visible to believers, and it sure looks to me that even from the standpoint of those convinced about these institutions, this is the kind of bridge too far that, in my estimation, is likely to do damage to both the ICC and the Security Council.

That is approximately Mike’s conclusion though he is as ever much more measured than I, and I recommend his article strongly, particularly to US diplomats trying to figure out what to do.  My view is simple.  Given that aggression is the primary review conference item, and further given that there is no way the US could actually go along with the ICC as a venue for making such determinations, irrespective of Security Council triggers and all that, this is one of those areas in which the Obama administration’s “always-engage” UN diplomacy is a mistake.  The US cannot really “negotiate” even as an “observer” because at the end of the day it will not go along.  Yet showing up to “negotiate” even under the rubric of “observation” is as though to say it can.  Things predictably end, if not in this case in tears, then at least irritation, and accusation – not undeserved – of US bad faith, on the quite reasonable view that the US showed up for the PR benefits even though it couldn’t do anything real and knew in advance that it couldn’t do anything real.

So, in my estimation, everyone would be better off if the US expressed its views on why this, even if attempting to judicialize an inherently political process were a good idea, is in any case a bridge too far – in a polite, detailed, serious letter to the review conference and left it at that.  That, in my purely speculative estimation, is the private view of leading states at the ICC review conference and, I would also speculatively guess, human rights NGOs who recognize that, although they have lashed themselves to the ICC-mast of the internationalist ship and have publicly committed themselves to IO human rights processes no matter what, somewhere deep in their hearts they would actually prefer not to go down with the ship and carry important parts of the substantive human rights agenda with it, as these various international organs perhaps head into serious, institution-weakening conflicts of legitimacy and jurisdiction.

Let me go beyond prescription to a descriptive point, however.  One of the questions raised by the crime of aggression discussions among a group of states formed as a treaty-club is whether, and to what extent, the whole effort is a mechanism for “contracting around” the Security Council.  Or, more precisely, contracting around the legitimacy of the Security Council.  Ostensibly an exercise in private voluntary ordering … but simultaneously presenting a serious challenge, at least potentially, to the public regulatory ordering of the Security Council and its authority.  As speculation, I’d suggest that this kind of private ordering challenge represents one of several emerging efforts by which real conditions in the world, such as the rise of the BRICs and the inability of the UN generally, and the Security Council in particular, to reform itself internally to adjust to a changing world.  The public order of the Security Council seems both outdated but also unamendable; new private forms contract around it in venues such as the ICC.

It is all more complicated than that, of course, because the ICC purports to carefully interlink with the Security Council in important ways.  But when it comes to defining aggression, then the private ordering process that was in an important way always seeking to alter the public process looks headed for many more conflicts of interest.  That is, of course, unless it confines itself to a particular subclass of civil wars in geopolitically not so important places in Africa where, frankly, no one much cares outside the region.

Partly this might be accounted for by the rise of a multipolar world, but that is not all of it.  When we say a multipolar world, at this point, after all, what we mean at bottom is the rise of China, and China is already a member of the Platinum Club of the P5.  China is perhaps not opposed to a reform of the Security Council that left it untouched but perhaps incorporated some of the BRICS – Brazil, for example – although why it would want some special status for India on the Council is not evident from a geopolitical standpoint.  In some ways, China is served by a Security Council P5 dominated by European states on the way down in the world.  But the contracting around question is not just a matter of geopolitics – general legitimacy issues that go to the UN, and things not captured necessarily by narrow declarations of state interest matter too.  (David Pilling has a very good piece in the FT, Thursday, January 28, 2009, “China will not be the world’s deputy sheriff,” on the question of how China sees its role in international order and the provision of public goods in international order, behind sub wall.)

http://opiniojuris.org/2010/01/29/contracting-around-the-security-council/

One Response

  1. Is it just me or is the Glennon article one enormous attack against a straw man? He first explains the setup of the Special Working Group proposal, with an extraordinarily broad definition of “act of agression”, one that may well be broader than the definition of that same concept in the UN Charter, and one that is subsequently narrowed in the defintion of “crime of agression”, which requires that the act of agression in question be – by its character, gravity and scale – a manifest violation of the UN Charter. This seems like a perfectly satisfactory definition to me, although you can quibble over the structure. Complaining that it is vague smacks of the Yoo-style argument that the definition of torture in the CAT is vague.
    But the strange thing is that Glennon then continues by listing past events that would qualify as “acts of agression” under the proposed definition, even though that definition is only relevant as an element of the definition of “crime of agression”. Is that list really worth 10 whole pages (p. 86-96)? Of course he is going to conclude that pretty much everything the US army has done in the last couple of decades qualifies as an act of agression: the definition deliberately excludes the question of justification/self-defence, which is left for the definition of “crime of agression”. Why doesn’t he spend those 10 pages considering which past presidents could have been accused of crimes of agression under the proposed definition?

    So I’m calling straw man on at least those 10 pages (out of 44), and quite possibly indirectly on the whole thing.

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