Assessing Kampala: The U.S. Could Have Done Worse, But Still Did Pretty Badly

by Julian Ku

I have been negligent in failing to post on two excellent assessments of the recent ICC Review Conference in Kampala and its ultimate decision on aggression.  Both assessments (one by Heritage’s Brett Schaefer and the other by George Mason’s Jeremy Rabkin) give the Obama Administration some credit for limiting the damage to U.S. interests at Kampala.  But both ultimately conclude (and I agree) that the ICC entering into the business of prosecuting aggression is bad news for U.S. interests and for the world.

Here is Schaefer:

Overall, the U.S. effort at the International Criminal Court Review Conference in Kampala was a qualified success. The outcome could have been much worse. While the conference adopted the Belgian amendment, creating a precedent for criminalizing the use of additional weapons as war crimes under the Rome Statute, the U.S. did succeed in minimizing the immediate risks to U.S. interests and nationals. The conference also passed a resolution that, if confirmed by future action by the states parties, would grant the ICC jurisdiction over the crime of aggression. Critically, the U.S. was successful in persuading the states parties to restrict the ICC’s jurisdiction over aggression in several significant ways that should help protect U.S. interests. However, the Obama Administration’s modest success in Kampala did little to address ongoing U.S. concerns about politicization of the court and illegitimate claims of ICC jurisdiction over U.S. service members and officials charged with war crimes, crimes against humanity, and genocide. The U.S. should not consider ratifying the Rome Statute until all of its serious concerns about the ICC are completely resolved.

Rabkin has a similar, but more critical take.  In his view, the entire ICC enterprise will result in no actual reduction in actions of military aggression, but simply weaken the ability of liberal democracies to resist war crimes, military aggression, and terrorist attacks.  Indeed, as he points out, the ICC continues to have no jurisdiction over non-state actors like Al Qaeda and very limited ability to punish states that support terrorist organizations.  The entire attempt to legally define and constrain aggression represents silly but dangerous wishful thinking.

What happened this summer was that the Obama administration decided it was easier not to disrupt this pleasant fantasy than to meet its responsibility to protect those who carry out the national security policies of the United States. Instead, the United States showed the world that it has rejoined the “international consensus” so rudely disrupted by the Bush administration. It will be years before we have to say we don’t actually share the premises of this latest dream of “peace through law.” And by then—we’ll have balanced the budget and gotten our debt under control, so we’ll be better able to confront this external challenge.

The problem is that, in the absence of a world legislature, advocates of international law tend to treat silence as consent (and they treat incoherent mumbling as equivalent to silence). That is how “consensus” leading to new “customary international law” gets established. A new “consensus” gained a lot of momentum at Kampala without any serious opposition from the United States. The world took another large step toward isolating and stigmatizing the American understanding of the “inherent right of self-defense.”

It will be important, in the next few years, to put the world on notice that we don’t, in fact, mean to go along with the subsequent stages of the project that the ICC represents. But we can’t now rely on the Obama administration to stand up for our sovereign rights. Time for others—especially in Congress—to start doing so before it’s too late to say, “We didn’t really mean it.”

As I have written before, there is surprisingly broad consensus in the U.S.  (among the spectrum of opinion that includes both Michael Glennon and Harold Koh), that the ICC’s crime of aggression was nothing but a disaster for the U.S. and for the ICC as well.  Although both Schaefer and Rabkin are writing from the right, I think their critiques accurately represent the U.S. political consensus.  The question for the new administration of 2017 (when aggression finally fully kicks in and when President Obama is finally out of office) is what to do about it.

http://opiniojuris.org/2010/08/19/assessing-kampala-the-us-could-have-done-worse-but-still-did-pretty-badly/

22 Responses

  1. I do not understand how a country that prosecuted Germans for aggression can later say that it does not really like crimes of aggression to be prosecuted. Isn’t the basis of any decent and legitimate legal system that a rule applies to everybody? Does anybody really consider the Iraqi invastion as part of the US ‘inherent right of self-defense’?
    Moreover, where does the idea that the ICC no jurisdiction over non-state actors like Al Qaeda come from? Of course the ICC may exercise jurisdiction over this type of crimes if committed in armed conflict (war crimes) or if widespread or systematic (CAH) on the territory of state parties or according to other titles of jurisdiction. Had the US been a party to the ICC Statute, the ICC could have even had jurisdiction over (some of) the 9/11 crimes – and as a bonus it might have chosen to avoid the whole discussion on civil vs. military trials in US courts, by just allowing trials to take place somewhere else…
    I find it fascinating that the US looks at these matters as if it was and was always meant to be the only super-power. On the contrary, strengthening the ICL project is clearly in the US longterm interests, in order to secure a safer world based on a real rule of law for when it is not anymore the only major military and political player. This can clearly only be done with the US active participation, for the EU, Africa and South America now making up the bulk of the ICC are doing a really terrible job at it…Just participate, make it better, and try to play according to the same rules as anybody else in your league!

  2. ==the U.S. did succeed in minimizing the immediate risks to U.S. interests and nationals.==

    There is a problem with stating that something is against the U.S. interests. When one talks about interests one should make a distinction between legitimate and illegitimate interests. It might be my interest to steal a wallet, but that does not give me a good argument to refuse to appear before a court, because it is an illegitimate interest. In the same way I don’t see why it should be a good argument to say that it is in U.S. interest to invade my country and rob my oil, and that I should not have any judicial means to stop that. Thus when talking about the U.S. interests one should prove that something is against legitimate interests or otherwise one begs the question. And I’m still waiting for a good argument that ICC could hurt any legitimate U.S. interest.

  3. I totally agree with Guy.

    Maybe you should explain a little bit more exactly what you mean by risks to ‘US interests’. Is it that US officials should have the leeway to commit acts of ‘inherent self-defense’ as determined by US doctrine that fall in the definition of the crime of aggression (as adopted in Kampala and reflecting GA resolution 3314) without incurring the risk to face international prosecutions? If the USA act legally nobody will have trouble. So why do you feel threatened? Maybe you disagree with this but personnally I don’t see an interest for any state in the world to commit acts of aggression.

    You seem to have forgotten the words of Justice Jackson:

    “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”

  4. Thanks for these spot on comments.  I have debated with Rabkin before in New York and listened to his defense of torture and unbridled Presidential power. Schaefer was international criminal court policy assistant to Rumsfeld in Bush 1 – a period that even John Bellinger distances himself from.

    I find it ironic that these analyses are posts on the day or so after the quote “last combat division” of the US is leaving Iraq and that is being celebrated.  Of course there are the 50 000 remaining troops and the couple of hundred thousand security private contractors there – so it is a bit of smoke and mirrors to call it the last combat division.  But here we are.

    And what is the sense at this moment: 1) Saddam was gotten out 2) the civil war was put down and 3) we were unable to set up a stable government.  It is said that the military did what they were supposed to do but now it is up to the Iraqis to build Iraq.

    I was struck at the relative modesty of Odierno after some 7 and a half years of enormous hubris about the Iraq war.

    I hope that as a country we surround our soldiers who came back with love and respect for having gone into harm’s way for us.  But, I sure hope that we do everything legal to distance ourselves from and denounce the boneheads who put in place this illegal war in the current and  the former administrations.

    Taking us Americans to war on false pretenses as the Bush Administration did do in what was and remains a patently illegal war – even discussing that – does not seem to have been discussed at Kampala.  At the ASIL meeting in April 2010 in a session on the US approach to the ICC, I proposed the provocative idea that all those folks in Kampala evaluate how they managed to let the US do an illegal war in Iraq and learn the lessons from that about aggressive war.  I even suggested that maybe it was time for the ICC to reevaluate its approach to the US – particularly when US “legitimate” interests are defined in ways that harken back to the 19th century Berlin conference carve up of Africa type competition.

    Odierno was saying that we have to look at the next five years to see what happens in Iraq.  $700 Billion or more later and 148 000 Iraqis dead 4500 Americans dead and 32, 000 wounded for a war that was sold to Americans on false pretenses. And such uncertainty about the outcome – what a waste.

    I would hope some of these beat their breast as triumphalists types about American power would have a bit of humility about what they let happen in unleashing that illegal war.

    And, the sense I have is that this war was like a colonial war and the situation right now with the enormous US footprint in Iraq is a variation on a neo-colonial metropole-antipodes kind of structure that we have seen so much since the independence movements in the late 1950’s.  Iraq feels like it has become an American vassal if it is successful (as Saddam was until he turned against us – nothing new under the sun) and the time we thought we were buying is just an illusion in the figments of the imagination (or maybe the sands of the desert) of those heat dazed imperialist dreamers who yearn for times of acquisition and conquest.

    Of course, when Iraq becomes more unruly – just a matter of time – the US political trope will be “Who lost Iraq?”  as if Iraq had ever been ours to lose.

    I think we could use a bit more reflection on the US need to have a permanent state of war in the post WWII space is something to do for us Americans before we go gaily into some other adventure led by some President who lies us into it like Bush and his folks did in the run up to this War in Iraq. The Chilcote commission revelations are telling us just how awful the thinking was.  Pitiful.

    Best,
    Ben

  5. I’m not an expert on Kampala, so I’ll just quote Rabkin.

    He states:
    By its terms, only those who “direct the political or military action of a state” can be guilty of “aggression”—that is, the definition does not apply to leaders of terrorist organizations like al Qaeda or the Taliban or Hezbollah. The Kampala amendments do specify that “aggression” encompasses the sending of “armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State”—but only when the “sending” is “by or on behalf of a State.”

    If correct, that definition appears fairly constrained and unlikely to apply Al Qaeda. 

  6. @humblelawstudent: Presumably because the idea is that groups like Al-Qaeda are either non-state actors that can be tried in ordinary court, or state-sponsored in which case their sponsors are guilty of agression. I don’t see how this is any kind of loophole.

    Remember, parties that are not states or acting “on behalf of a state” are not covered by any kind of sovereign or military immunity, so they can simply be prosecuted in civilian court. The only problem, as with the ICC, is to get them there.

  7. So, then Guy is incorrect. The crime of “aggression” could not be applied to Al Qaeda.

  8. And M. Holterman, this ties right into the problem.  If a non-state actor operates from a state and that state insists it can’t control them, then the crime of aggression can severely limit the victim state’s ability to respond to the non-state actor at its operating country because the crime of aggression would largely prevent any such responses while doing little to control the non-state actor.

  9. @humblelawstudent:

    All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

    If you have a problem with the law enforcement (or rather: lack thereof) of another state, the thing to do is to turn to the United Nations.
    There are two exceptions I can see to that, under the law as it is: Firstly, if the host state’s insistance that it cannot control the terrorist organisation operating out of its territory is clearly not in good faith, it would seem reasonable to consider them a state sponsor of terrorism despite their objections.

    Secondly, if the terrorist organisation in question is so powerful that it is akin to a government on its own, then you’re getting to a situation where it is sufficiently state-like to be the subject of state-like obligations under international law, meaning that the victim-state can apply art. 51 Charter and defend itself against the terrorist organisation.

    In the extreme case of the various (unrecognised) successor states to Somalia, I think few would insist that the members of the government of Puntland or Somaliland are incapable of committing the crime of agression, or that (other) states would be forbidden from using their right to self-defense just because the government in Mogadishu did nothing wrong. The same goes for the Hamas government in Gaza. (Which, as noted on this blog, has the unfortunate consequence that captured Hamas fighters must be granted POW status.)

  10. As I followed a link to this The End Of Nations Hub on Hubpages I convinced myself that opinio Juris’s commenters have to be able to pass judgment on this link! http://hubpages.com/hub/Global-Union-The-End-Of-Nations

  11. I find the whole idea rather strange that the US government refuses the ICC on grounds of a violation of sovereignty. The contrary is actually true. If a US soldier committed a crime on foreign soil; be it murder, a war crime or any other crime, that foreign country would naturally have jurisdiction to try this US soldier on grounds of the principle of territoriality (given no extradition treaty exists that would state otherwise).

    The US couldn’t do anything to prevent the foreign state from holding the trial, just as a foreigner has to deal with the fact that he/she will be tried in the US, if he/she commits a crime on US territory.

    By joining the ICC, the US would actually gain some influence over the foreign state that is holding the trial for war crimes etc, as it can claim that the trial is not conducted fairly in that country, and the whole situation should thus be referred to the ICC (or if possible, to the US as a member state of the ICC).  

  12. A small point, Julian, but when a Fellow at the Heritage Foundation – and a person is among the most vehement citics of the ICC – is able to call the Review Conference outcome a qualified success, well that seems pretty significant to me.  It doesn’t seem to imply that the US did ‘pretty badly’.

    Besides, didn’t David Scheffer call it a successful, manageable outcome in a NYT op-ed on July 1?

    Finally, you mention Harold Koh, but Harold did say that the outcome on aggression “protected our core intersts” during a June 16 ASIL/CFR seminar.

    The consensus is strikingly hard to find.

  13. I saw this post this morning, and sort of knew it would generate a lot of comments.

    What I find interesting in Julian Ku’s post, and the comments made by Brett Schaefer and Jeremy Rabkin’s concerning Kampala, is that the United States’ Hobbesian vision of international law is still alive and kicking.

    For those who are not familiar with this concept, the Hobbesian approach considers that international is there to protect a State’s interests from other, potentially hostile States, and nothing more. It is often opposed to the “Lockean” vision of international law, according to which international law is there not only to protect States’ interests, but also to promote cooperation, and ideally integration of the different Nations. A very much more European idea and ideal.

    I recently wrote an essay on the United States’ Hobbesian approach to the ICC from the negotiating of the Rome Statute to 2005, when the US let the Security Council refer to the ICC the situation in Darfur. I’m happy to learn that there’s plenty of potential for me to write a follow-up in the coming years. Then again, I’m not sure I’m happy about it.

    Just like Guy, I have a hard time to understand the Americans’ rationale behind this. Why do they feel threatened? How can a democratic State refuse to promote international rule of law and fight impunity? As Guy remarks, the United States have been staunch supporters of international criminal justice from Nuremberg to the 1990s. Unfortunately, they now give the appearance that what is good for others does not apply to themselves.

    One could argue that had the Crime of Aggression existed, and the ICC had jurisdiction over the United States in 2003, George W. Bush, Dick Cheney and Donald Rumsfeld would probably be indicted by now. But that is not the case, and we all hope that our American friends will not reattempt a similar experience any time soon.

    As for the ICC having jurisdiction over terrorist groups, it is technically possible. The Rome Statute does not (unfortunately, in my opinion) include a Crime of Terrorism, mainly because States have – to this date – never been able to agree on a comprehensive definition (due to the well known cliché that “one man’s terrorist is another’s freedom fighter). But it can target it on other counts, notable war crimes, and potentially crimes against humanity. It would be interesting to see how the ICC deals with this if it ever establishes jurisdiction over Palestine. It will probably go after certain IDF commanders, but also Hamas, a non-State armed group qualified as a terrorist organization by many (myself included). Chances of that are however, and unfortunately, weak. But we’ll see.

    Old Europe, thank you for that Jackson quote. I did not know of it, but I’ve noted it down, it’s very good, and very true.

  14. “… to stand up for our sovereign rights.”

    In other words, the sovereign right to trample all over other countries’ sovereign rights. It still smacks of a policy where the US can use international law when it suits their strategic purposes and ignore it otherwise – and damn everyone else.

    However, I suspect criticising US exceptionalism always results in the hysterical cry of ‘anti-americanism’.

  15. @Xavier

    Before ICC goes “after certain IDF commanders, but also Hamas” the Palestinians should be able to sue Israel at an international court and demand respect for their right to self-determination. For instance they could sue Israel and demand that it retreats within the pre-1967 borders.

    And before ICC goes after Al Qaeda, the individuals all over the world should be able to sue states at in an international court and demand that states do or refrain from certain things. For instance the spouse of a person killed by a drone in Pakistan, Yemen, Somalia should be able to sue US. Or a person abducted, tortured, falsely imprisoned at Guantanamo, should be able to sue U.S. in an international court and demand to be released and compensation. And not very farfetched is that bin Laden should be able to sue U.S. and demand that U.S. does not keep a dictator in power in his country anymore. There are some interesting quotes from bin Laden’s letter to America: “You are the last ones to respect the resolutions and policies of International Law, yet you claim to want to selectively punish anyone else who does the same. Israel has for more than 50 years been pushing UN resolutions and rules against the wall with the full support of America…As for the war criminals which you censure and form criminal courts for – you shamelessly ask that your own are granted immunity!!… What is the value of your signature on any agreement or treaty?”

  16. Mihai,

    I would say that in an ideal world, I would agree with you. But this isn’t an ideal world, and we have to work with what we have. I would also add that the question of Palestinian self-determination is very complex, and I’m not sure even the Palestinians would want a Court of Law to decide it for them. I think they’d rather have balanced negotiations with the Israelis on that matter backed by the United States. Whether that will ever happen is a debate I don’t want to get into.

    As for Bin Laden’s little lecture in International Law, I’ll have to admit I’m not comfortable at taking these points from someone whose followers make a business of violating the most fundamental principle of International Humanitarian Law: the principle of distinction. That being said, I take your point that the double standards the United States applies in its relation to international law, and more particularly international criminal law, delegitimizes its efforts to a certain extent.

    “The success of international criminal justice depends on whether the trials are fair” wrote Judge Richard Goldstone (I am quoting from memory, so that might not be the exact words). For international criminal justice to succeed, the trials must be fair, as Goldstone points out, and – going a bit further than Goldstone – the application of the law also must be fair and uniform.

    Why I would like to see the ICC get involved in Palestine is that the situation there is one of the most mediatised impunity gaps in the world, and should the ICC succeed, it and the concept of international criminal justice would greatly gain in legitimacy in the eyes of world public opinion. It is also an extraordinary challenge, as, should the ICC manage to establish jurisdiction there, neither Israel nor Hamas is bound to cooperate, but we shall see.

    My point is – and this is where I find the United States’ position very frustrating – for international criminal justice to succeed (and I’m building on the hypothesis that everyone has an interest in establishing an international rule of law), the law must be the same for everyone. The system cannot function if based on double standards. I wish the United States would understand that, but their Hobbesian outlook on international law prevents it. That position may “work” to a certain degree as the United States is currently the world’s sole superpower, and pretty much can do whatever it wants without great risk to its standing (although, I believe the Iraqi invasion showed the beginning of the limits to that). But that might change within the next few years, and with it, the United States’ position on the ICC.

  17. ==I would say that in an ideal world, I would agree with you. But this isn’t an ideal world, and we have to work with what we have.==

    This is a reply that one can use on every possible argument. For instance when you say that “United States’ position [is] very frustrating”, I could reply that this is not an ideal world and we have to work with what we have. Thus I can defeat all your arguments only by replying you with those two sentences.

    ==I would also add that the question of Palestinian self-determination is very complex, and I’m not sure even the Palestinians would want a Court of Law to decide it for them. I think they’d rather have balanced negotiations with the Israelis on that matter backed by the United States.==

    The Palestinians have nothing to offer to the Israelis in exchange for a piece of land. The Israelis don’t have any reason to negotiate, since they have a huge army and the U.S. backing. The E.U. might have a big mouth, but in practice they swallow whatever Israel does. If the Israelis delay negotiations long enough en keep on building, there will be nothing more left from the West Bank. So why should the Israelis be genuinely interested in negotiation and why should the Palestinians expect anything from it? Therefore a court could offer the Palestinians much more than what they could get by negotiating. They backed the ICJ’s advisory opinion and they tried to sue Sharon in Belgium. Thus there is no reason to believe that they would prefer negotiations rather than a court’s decision. For instance an arbitration court.

    ==As for Bin Laden’s little lecture in International Law, I’ll have to admit I’m not comfortable at taking these points from someone whose followers make a business of violating the most fundamental principle of International Humanitarian Law: the principle of distinction.==

    If you were his lawyer, what would you advise him? Protest in front of the U.S. embassy in Saudi Arabia? Write a letter of complaint to the U.S. government? Sue the U.S. government in U.S. courts? To attack an army that spends 700 billion yearly on hardware? (well he tried that, bombing USS Cole, but did not work) Thus imagine that you were a certain citizen of the world, your country is ruled by a dictator that is kept in power by outside forces and he will not protect your interests and rights, or you are not really a citizen of a state, like the Palestinians, or because yours is a failed state. Thus the usual international law means, such as diplomatic protection, are not available to you. Or the state does not want to help you, like in the Al-Adsani case. You believe that some state violates your rights or it is a danger to your life, your family, your rights. Is there something that international law offers you? And if it does not protect you in any way, why should you ever respect it or even consider that it exists? Thus bin Laden, a spouse of a one killed by a drone in Somalia, or a prisoner in Guantanamo (Abu Ghraib, Bagram) hires you as his/her lawyer and you have to use international law to solve their problem. What would you advise?

  18. Mihai,

    Thank you for illustrating the utter ridiculousness of your ideas, namely that Bin Laden should be able to sue the US in the ICC prior to the ICC even being able to exercise jurisdiction over Al qaeda and condemn them for their actions.  As you appear to ascribe to the Bin Laden school of international law, perhaps you would tell us about his views on punishment of the infidel or adulterer under IHL or perhaps how a probable infidel like yourself should be treeated in his system of law.   I bets its all unicorns and sunflowers.   (typos are from typing on my droid)

  19. @humblelawstudent

    If you believe that any other citizen or legal person in the U.S. violates your rights, does the other person decide herself whether to appear before a judge? Imagine that you believe that Pete raped, killed and sold the organs of you twelve-year-old daughter. You have filmed it from four different angles, you have fifty witnesses, you saw it yourself and the forensic team you hired is certain that Pete did it. You go to Pete and tell him you are going to sue him. He replies that he’s not going to appear before any judge and gives you one or more of the following answers:

    You are blind, your witnesses are crazy junkies and your film is flawed.
    Yes killed her, but I had good reasons: I discovered a medicine while experimented on her, that will save the lives of millions of baby’s, including the life of your other children, that have a terminal illness.
    Yes I killed her, but it was self-defense, she hold a gun to my head.
    You are just jealous on my riches, my material, intellectual and moral superiority and want to destroy me.

    So please tell me would you accept that Pete has the last word in his refusal to let a judge decide the matter? If the answer is no, why should have the U.S. always the last word?

Trackbacks and Pingbacks

  1. [...] earlier this month that argues (unsurprisingly) that the U.S. should remain wary of the ICC (h/t Opinio Juris).  I (unsurprisingly) think he’s wrong.  The report’s problems begin in its first [...]

  2. [...] at Opinio Juris, Hofstra’s Julian Ku is impressed with criticisms of the International Court of Criminal Justice’s assertion of jurisdiction over [...]

  3. [...] what I’ve been reading, Julian Ku belongs to the American school of thought that considers the ICC to be a threat to American interests, that the adoption by the Assembly of States Parties at Kampala in June of a definition (PDF) for [...]