The Multilateralist’s Persuasive Defense of the ICC: The U.S. Doesn’t Have to Worry About the ICC, As Long as It Stays Out of the ICC

by Julian Ku

In the interests of being fair and balanced (as always!), I thought I would post on this good response by David Bosco to Jeremy Rabkin’s recent essay on the International Criminal Court in The Weekly Standard (which I discussed here).  Although I am not totally convinced by it, I think Bosco offers the best possible defense of the ICC that would be persuasive to U.S. policymakers.  In a nutshell, he agrees with Rabkin (and many others), that the ICC effort to define aggression is a “dead end” and that it would ultimately favor non-state actors and terrorist organizations.  But he offers a measured defense of the ICC against Rabkin’s broader attacks. In essence, he seems to be saying that aggression is not much of a problem for the U.S. since it is staying out of the ICC and has successfully limited the jurisdictional scope of the ICC over aggression crimes.  Second, he points out that the ICC (contrary to Rabkin’s earlier predictions) has not proved to be an instrument of anti-American policy that has threatened any U.S. self-defense interests.

Bosco makes some good points.  But there is a certain irony in this kind of defense of the ICC for someone who (probably) supports eventual U.S. ratification of the ICC statute, since it depends on the U.S. continuing to stay out of the ICC.  It is true that the U.S. has not been the subject of an ICC investigation yet.  But I think even Bosco would concede that the main reason the U.S. has not been the subject of an ICC investigation is because the U.S. refused to join the ICC.  Had the U.S. joined the ICC, there is no question in my mind that the U.S. would be subject to numerous ICC investigations related to interrogation policy, Guantanamo, military commissions, targeted killings, and the Iraq and Afghanistan wars.  Bush administration folks would be under investigation, but so too would Obama administration folks.  If Bosco thinks differently, I would love to hear him explain why.  I seriously doubt, for instance, that the principle of complementarity under the ICC statute would have been satisfied in the case of the “torture memos.”

Indeed, for many ICC supporters, the whole point of the U.S. joining is to punish alleged U.S. wrongdoing and prevent future U.S. wrongdoing.  It is odd that the most persuasive defense of the ICC relies on its toothlessness and the fact that opponents of the ICC (like Rabkin) have successfully persuaded U.S. decisionmakers to stay out.

http://opiniojuris.org/2010/08/23/the-multilateralists-persuasive-defense-of-the-icc-the-us-doesnt-have-to-worry-about-the-icc-as-long-as-it-stays-out-of-the-icc/

5 Responses

  1. Julian,

    I do not follow your logic.  As you well know, the ICC can exercise jurisdiction over a US citizen in so far as he/she commits a crime on the territory of a state party, as well as if a non-state party gives consent to jurisdiction pursuant to Article 12(3).  (Let’s set aside a referral from the Security Counsel as the U.S. would obviously exercise a veto).  In other words,  I don’t think the fact that the U.S. has not been subject to an investigation yet can simply be attributed to the U.S’s not having joined the court.

    For example, Afghanistan is a party to the ICC.  Thus far, the Prosecutor has not even officially opened an investigation into Afghanistan and has not approached the Pre-Trial Chamber to do so.  (I believe Kevin had a post about this some time ago).   Nor has anyone at the Court sought to obtain Cuba’s consent to investigate possible war crimes at Guantanamo.

    Unless one assumes that the effort to define a crime of aggression is in and of itself evidence of anti-Americanism or perhaps that international criminal law types just inherently have it out for the United States, what evidence is there that the ICC has it out for the United States?

    Incidentally, while I think it is disgraceful that the United States has made minimal efforts to prosecute those responsible for the torture of detainees in US custody, the ICC’s mandate is to consider “the most serious crimes of international concern.”  In light of this, there is certainly an argument that the Prosecutor should continue to focus on situations like the Congo and Darfur and not go after US policy-makers and interrogators for what was done to KSM and alike.

  2. Professor Rabkin produces an astounding number of fallacies. For instance he writes: “The interest of the United States is in ensuring that it retains the sovereign right to make its own decisions.” If going to war is a matter of sovereign rights, Rabkin has to explain to us how U.S. can go to war without violating the sovereign rights of other states. But if it is a matter of sovereign rights whether some action is an action of “inherent right of self-defense” this action is not limited to an action involving the army. There is no rule of international law that limits the acts of self-defense to military actions, and one can employ other means as well; for instance legal means. Thus if a state has an “inherent right of self-defense” using its army, it has also a right to bring the leaders of the other state before ICC and sue them for the crime of aggression.  In short, according to Rabkin, all states are sovereign but the U.S. is the Sovereign.

  3. “Had the U.S. joined the ICC, there is no question in my mind that the U.S. would be subject to numerous ICC investigations related to interrogation policy, Guantanamo, military commissions, targeted killings, and the Iraq and Afghanistan wars. Bush administration folks would be under investigation, but so too would Obama administration folks”

    In short, there is ample reason to suggest:
    1 the War in Iraq was based on fabricated evidence: i.e. yellowcake forgeries,
    2 the US engaged in torture,
    3 the US kidnapped innocent civilians, to be tortured,
    4 the US refuses to investigate, let alone prosecute, those involved in possible war crimes

    In light of the above I am interested to hear why it is a bad thing for the international community to step in when the US itself vehemently refuses to abide by international law and prosecute alleged war criminals merely on the ground they are US citizens.

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  1. [...] criticizing the positions supported by Julian Ku. Julian Ku answered David Bosco’s position in another post. Here’s an excerpt: “Although I am not totally convinced by it, I think Bosco offers [...]

  2. [...] been some back and forth this week between Julian Ku and David Bosco about Jeremy Rabkin’s recent critique of the ICC in the Weekly Standard.  [...]