The WSJ Warns Against “Flirting” With the ICC

by Julian Ku

Adding to our already energetic discussion about the ICC and Kampala is the WSJ Editorial Board’s contribution today.  I share many of the editorial’s skeptical views of the ICC and I think even Kevin would not find any “lies” in this article.  Here is the crux of their critique, which I mostly share:

From the Balkans to East Timor to the Mideast, these pages have welcomed international action to stop atrocities. In select cases, such as the U.N. war crimes tribunal for the former Yugoslavia, we’ve backed ad hoc courts with a narrow mandate, limited life and proven commitment to fairness. The ICC meets none of those standards.

Moral grand-standing via indictments also isn’t the same as doing something about crimes against humanity. The indictment of Sudan’s butcher of Darfur, President Omar Hassan al-Bashir, made him harder to dislodge, and absent serious intervention, it has probably prolonged the suffering there.

Only two quibbles: 1) Why is the Yugoslavia tribunal more likely to be fair than the ICC? 2) I also don’t quite agree with the lead: “Step by tentative step, the Obama Administration is getting closer to embracing the International Criminal Court. The White House won’t join the Hague-based body soon, but that’s its logical endpoint.” I don’t see this happening anytime in this president’s term (either his first or second). And I’m not sure that non-cooperation is a viable or desirable strategy.  I think the Administration’s approach is about right, assuming they end up close to the CFR Report’s recommendations.

http://opiniojuris.org/2010/04/28/the-wsj-warns-against-flirting-with-the-icc/

13 Responses

  1. The editorial is behind the firewall, so I’ll take Julian’s word for it that it doesn’t contain any lies.  The claim that the ICTY and ICTR are more fair than the ICC, however, indicates that the Editorial Board has absolutely no idea what it is talking about. (And really, does anyone think that whoever wrote the editorial bothered to read the relevant statutes before putting pen to paper?)  There are no relevant differences between the ad hoc tribunals and the ICC in terms of fairness, and the minor differences that exist indicate that the ICC has the superior procedural regime.  Two examples: (1) both the ICTY Statute and the Rome Statute guarantee the right to silence, but only the Rome Statute specifically provides that no adverse inference can be drawn from a defendant’s invocation of that right; (2) only the Rome Statute specifically provides that no burden of proof may be placed on the defendant.

    We know, of course, why the WSJ believes that the ICTY and ICTR are more fair than the ICC — the US is responsible for the former, but opposed to the latter.  The Editorial Board simply assumes as a matter of faith that anything the US touches necessarily turns to gold, unpleasant facts to the contrary be damned.  (And ignored.)

  2. Before someone responds that the WSJ was talking about actual trials, not simply paper guarantees, it’s worth noting that the ICC has yet to complete its first trial, making fairness in practice impossible to judge.  (The judges’ willingness to consider dismissing charges against Lubanga because of Moreno-Ocampo’s misuse of confidentiality agreements bodes well.)  And, of course, the idea that the ICTY and ICTR’s trials are paragons of fairness would elicit more than few chuckles from most individuals — defense, prosecution, chambers — who have experienced them firsthand.

  3. Indeed. In the WSJ’s logic, the only fair tribunal is one which the USA controls or at least calls the shots. What they call politicisation is actually the view that international law is something for everyone else except the USA, which can use it when it feels like it and violate it with impunity otherwise.

    Of course, it’s worth asking the questions: are 111 countries, who are members of the ICC, completely wrong – and if not, what is it that makes the USA a special case?

  4. Of course, it’s worth asking the questions: are 111 countries, who are members of the ICC, completely wrong – and if not, what is it that makes the USA a special case?

    First, yes.

    Second, everyone knows the ICC is merely an attempt to prosecute the American military.

    Third, the mere fact that the USA is the USA is what makes the USA special. Deal with it.

    /WSJ’d

  5. Kevin, your seeming worship of the text of the Rome Statute is akin to defenders of Soviet Russia pointing out that its constitution guaranteed free speech (for example), which it in fact did.  How’d THAT work out?

  6. Funny how all those who disagree with Kevin on this post refuse to indicate one fact or example disproving his reasoning, but only refer to assumptions or hearsay or comparisons with completely different situations…
    It appears clear to any even-minded person that the US (and other countries of course) may claim good faith in international relations only when they accept that the claim they make against others can also be made against them. The US agreed that it is fair to impose criminal prosecution against Germans, Japanese, former Yugoslavs, Rwandans…regardless of their constitutional provisions or acceptance – so they cannot claim that, in similar circumstances, they should be exempt. Nobody can deny that in any other field this logic would prevail…so why so much fuss when it is applied to international relations?

  7. Well I for one agree that the WSJ editorial is inane, and to the extent Kevin is merely pointing out US hypocrisy (support ICTY, not support ICC), then fine.  The ICC is flawed for other reasons (in my opinion), reasons applicable to the ad hoc tribunals, and IMT, so the inanity of a US news organ’s editorial board does not exactly bear on the soundness of the ICC.

  8. Ellis,

    While I think we can all agree that we have to wait and see how the ICC actually carries out trials, it surely bodes well that not only does the Rome statute guarantee additional rights to the statutes of the ad hoc tribunals, but the Court has already refused to confirm the charges against one defendant, Abu Garda (i.e. it tossed the case prior to trial).  This suggests to me that the ICC is not set up just to secure convictions.  

     

  9. Ellis,

    I’m glad you offered your second comment, because your first one was is completely ridiculous.  I can only assume that you are not a regular reader of this blog, because I have written a significant number of posts that are deeply critical of the ICC.  And I have published multiple articles criticizing the Rome Statute.  (See my SSRN page.)  What I don’t like are ignorant attacks on the ICC, such as the one offered by the WSJ editorial.

  10. Kevin, I am a regular reader, though I have not read all of your SSRN-posted articles nor anyone else’s (some; not all).  Without doing a review right now my recollection is that your criticisms are typically highly technical on specific procedural points.  Perhaps I am incorrect there.  From your postings here it is evident that you are very much in favor of the ICC project/concept and very impatient with persons who are not (such as myself; not me personally as you don’t know me from anyone).  In the present instance I merely take issue with your citation of statutory text as some sort of QED refutation of arguments that the ICC will not observe certain principles that US jurisprudence does.  And also you go beyond just a refutation but insist on labeling as “lies” the arguments contra.  That is what I reacted to.

  11. Ellis- you write that
    “The ICC is flawed for other reasons (in my opinion), reasons applicable to the ad hoc tribunals, and IMT, so the inanity of a US news organ’s editorial board does not exactly bear on the soundness of the ICC,”

    and that you do not “favor of the ICC project/concept….”

    Evaluation of your negative conclusions regarding the ICC is difficult without knowing their factual and legal bases. Might you share those with the rest of us?

  12. Charles:  Not being an academic, I have written no paper on the subject I can cite to.  I don’t know that I can make a convincing case here; I am certain I cannot make a concise one.  The root of my dissatisfaction with the ICC and its predecessors is political-philosophical.  I also believe that the international law faithful are in far too great a hurry and willing to cut far too many corners in their efforts to build an international law temple and enshrine an international law gospel of their own selection therein.  To Kevin’s particular refutations of WSJ and other assertions the ICC in applying IL likely will not conform to principles of jurisprudence we in the US (and I think elsewhere as well) generally regard as necessary–which refutations he has made by citing parts of the authorizing statute–all I can say is that I have read a few of the ICTY decisions and it seems that plenty of the ICTY judges do not hesitate to disregard (if not flout) statutory text and other well-established principles if they feel they need to in order to advance their view of the Tribunal’s proper mission.  So because of that history, I suggest that Rome Statute sections are not trumps to the concerns urged by sceptics.  That is my point in this thread.

  13. “ICTY judges do not hesitate to disregard (if not flout) statutory text and other well-established principles if they feel they need to in order to advance their view of the Tribunal’s proper mission” – just like US Supreme Court Justices, right? So, what’s the big deal?

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