When Bad Things Happen to Good Scholars (Koh and the ICC Edition)
I’ve long thought that any scholar who wants to maintain his or her credibility should stay far away from the US government, no matter which party is in power. Harold Koh is a case in point. Others have highlighted his problematic testimony about targeted killing, which continued to maintain the Bush administration’s fictions — ably dissected by my friend Marko Milanovic — that we are in some kind of amorphous global armed conflict with al-Qaeda and that the US’s right of self-defense under the UN Charter means that (alleged) members of al-Qaeda have no protection against targeted killing under international human-rights law. I want to focus on Koh’s recent and even more problematic testimony about the crime of aggression, which will be the focus of the ICC’s review conference this June in Uganda.
As the International Law Commission recognized when it looked at this issue in 1996, a state whose leaders are accused of aggression must consent to jurisdiction to be tried in another state’s courts. We believe that it follows that the International Criminal Court’s jurisdiction over such cases, when it derives from national jurisdiction, must similarly require the consent of the State that is accused of aggression.
The 1996 Draft Code of Crimes Against the Peace and Security of Mankind, which was adopted by the ILC in its Forty-Eighth Session, says nothing of the sort. Article 8 does not permit states to prosecute other states’ acts of aggression; it specifically vests jurisdiction over the crime of aggression in an international criminal court. And Article 8 does not require an international criminal court to obtain the consent of the state whose national is accused of aggression.
With respect to the Chair’s second question, our views are well-known: that investigation or prosecution of the crime of aggression should not take place absent a determination by the UN Security Council that aggression has occurred. The UN Charter confers on the Security Council the responsibility for determining when threats to peace and security, including aggression, have taken place. We are concerned by the confusion that might arise if more than one institution were legally empowered to make such a determination in the same case, especially since these bodies, under the current proposal, would be applying different definitions of aggression.
This statement is disingenuous. The Charter does not confer on the Security Council exclusive jurisdiction to determine whether an act of aggression has taken place; both the General Assembly (such as its condemnation of China for acts of aggression toward Korea) and the ICJ (the US’s support for the Contras in Nicaragua) have made that determination, as well. That is why different options for the crime of aggression being considered by the Special Working Group would permit either the General Assembly or the ICJ to trigger the ICC’s jurisdiction if the Security Council fails to act.
The US position is also, of course, a political non-starter. There are only five countries in the world who would be happy conditioning the ICC’s jurisdiction on the Security Council determining that an act of aggression has taken place — the five members of the Security Council with a permanent veto. The ICC would be better off not having jurisdiction over aggression than allowing the P-5 to determine which acts of aggression it can (and cannot) prosecute. Which is, of course, exactly why the US continues to maintain its position — it wants to ensure that the Assembly of States Parties never adopts a definition of the crime.
Mr. Chairman, this decision would bring about an organic change in the Court’s work. Because this is such a momentous decision for this institution, we should leave no stone unturned in search of genuine consensus.
This just makes me chuckle. By “genuine consensus,” Koh means one thing and one thing only — a consensus that the ICC should uncritically adopt every US suggestion for how it should operate. A consensus that ensures the ICC will never prosecute an American or anyone else from a member of P-5. That position was unacceptable when the Republicans were in power, and it is no less unacceptable now that the Democrats are in power.
I am quite sure that Koh knows his arguments are both factually incorrect and politically unacceptable. Unfortunately, now that he has joined the Obama administration, he has no choice but to parrot the US line. Exhibit A as to why serious scholars should not join the government — regardless of who is president.