Eric Posner on the Coming Death of the ICC

by Kevin Jon Heller

Eric Posner has a new Cassandra column at Slate, this latest one foretelling the doom of the ICC. There isn’t much point in disagreeing with his basic thesis; no one knows at this point — not him, not I — whether the ICC will succeed. It is possible, however, to take issue with a number of assertions that Posner makes in his article. Some are unfair; others are simply wrong.

If anyone ought to be prosecuted for war crimes, it’s this reviled leader, who almost certainly directed poison gas attacks against civilians. But as Joshua Keating explained in Slate, it’s not going to happen. This, just the latest blow to the ICC, illustrates once again why the prospect of international justice through global courts is ever receding—and why the court’s own days may be numbered.

This assertion falls into the unfair category. As Alana Tiemessen pointed out on twitter, the ICC can hardly be blamed for the failure of the Security Council (for now) to refer Assad to the Court. And, of course, the assertion simply ignores the fact that the Security Council has referred controversial situations to the Court in the past. Posner could have acknowledged Darfur and Libya. He could have acknowledged how the Darfur referral has made it considerably more difficult for Bashir to function as Sudan’s head of state. (See, e.g., the ongoing controversy over his desire to travel to the US to attend the UN General Assembly, which will never happen.) If Posner wanted to say something critical, he could have pointed out that the real problem is the Security Council’s failure to back up its referrals, either financially or in terms of enforcement. But that would have simply highlighted the fact that the problem is the Security Council, not the ICC.

Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.

Both unfair and wrong. Posner simply elides the difference between aggression, crimes against humanity, and war crimes with regard to retroactivity. Yes, the aggression charges were ex post facto. One could also question the crimes against humanity charges, although the nexus requirement, which required crimes against humanity to be connected to the war, at least arguably justified them. But it is simply wrong to say that the war-crimes charges — on which all but Streicher and von Schirach were convicted, for example, at the IMT — “lacked a basis in international law.” States had been prosecuting violations of the laws and customs of war for decades, if not more than a century, before the IMT.

The civil war in Yugoslavia and the genocide in Rwanda spurred the U.N. Security Council to establish two tribunals to try participants for international crimes. These tribunals rested on a somewhat firmer legal basis than Nuremberg and Tokyo. Yugoslavia and Rwanda had given theoretical consent to Security Council authority decades earlier and so could be considered bound to its resolutions.

This is incorrect. With regard to the IMTFE, the Potsdam Declaration stated that “stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners,” and Japan’s Instrument of Surrender formally acknowledged the obligation of Japan “to carry out the provisions of the Potsdam Declaration in good faith, and to issue whatever orders and take whatever action may be required by the Supreme Commander for the Allied Powers or by any other designated representative of the Allied Powers for the purpose of giving effect to that declaration.” Posner believes that Japan’s consent did not provide a “firm legal basis” for the IMTFE?

There is also little question that the Allies were entitled to create the IMT, even if it is possible to quibble over its precise legal foundation. Perhaps it was through Germany’s consent, given that the Allied Control Council was sovereign in Germany following the debellatio of the German state. Or perhaps it was — similar to the ICC — through the pooling of the Allies’ own jurisdiction. Either way, it is hardly the case that the IMT rested on a weaker legal basis than the ICTY and ICTR (whose creation by the Security Council, Posner could have noted, was itself questioned at the time).

Still, the Yugoslavia trial could be seen as victor’s justice—an impression reinforced by the fact that the tribunal was deprived of authority to try any Westerners who committed war crimes, such as NATO pilots who dropped bombs on civilians. Serbians in particular claimed that the tribunal was biased against them.

This is categorically incorrect. The Security Council did not deprive the ICTY “of authority to try any Westerners who committed war crimes.” The ICTY has jurisdiction over “persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia” after 1 January 1991. That includes “Westerners” who participated in NATO’s bombing campaign. No “Westerners” have been prosecuted by the ICTY because its Prosecutors have refused — controversially — to indict them, not because such prosecutions are outside of the Tribunal’s jurisdiction.

(As an aside, the Balkans isn’t part of “the West”?)

So when the United States, Russia, China, India, Pakistan, Turkey, and Israel all refused to ratify the ICC treaty, the court was crippled from the start…. They did agree that the U.N. Security Council would have the power to authorize the ICC to investigate and try anyone in the world for international crimes—a provision acceptable to the great powers because they control the council.

The Security Council can refer situations to the ICC because Art. 13 of the Rome Statute gives it that right. The Rome Statute is a treaty. States that have not ratified the Rome Statute have not “agreed” to anything.

Because the ICC treaty specifically limits ICC involvement to cases where national legal institutions fall short, the ICC focused its attention on the latter group, which unfortunately were mostly African. In some cases, the African countries invited ICC participation, but in others it was thrust upon them. For example, the Security Council authorized the ICC to investigate Sudan, whose president Omar al-Bashir was indicted for his role in ethnic killings in Darfur.

Unfair again. Although the ICC deserves criticism for focusing solely on Africa, it can hardly be blamed for the Security Council’s decision to refer an African situation to it. Posner’s description of the ICC’s investigation in Darfur as “authorized” by the Security Council is particularly misleading, because implies that the Court asked the Security Council to give it jurisdiction over Darfur. It did not — the recommendation came from the Commission of Inquiry, which was itself created by the Security Council.

Even a country like Uganda, which invited ICC participation, later found that as a result it could not offer an amnesty to insurgents in order to establish peace.

Again incorrect. Uganda is entitled to offer an amnesty to any insurgent — ie, any member of the LRA — who is not facing charges at the ICC. There are currently around 400 LRA soldiers and four indicted LRA leaders. That means Uganda is currently entitled to amnesty 99% of all LRA soldiers if it believes doing so is necessary to promote peace.

Meanwhile, the ICC—with an annual budget of more than $140 million and staff of about 700—has been able to convict only one person (the Congolese warlord Thomas Lubanga) in more than a decade.

The old shibboleth, and a profoundly unfair one given the complexity of setting up a global criminal court outside of the UN system. Posner also simply ignores the 20+ suspects who are currently facing charges. The US Supreme Court barely decided 10 cases in its first decade, despite not being solely a criminal court and having the full resources of the US behind it. Should it have been deemed a failure in 1800?

And the Kenyan Parliament has voted to withdraw Kenya from the ICC.

Literally accurate, but misleading. As I’ve noted before, the Kenyan Parliament does not have the authority to withdraw from the Rome Statute. It can simply recommend doing so to the President, Kenyatta — who at least at this point continues to cooperate with the ICC.

And even if Assad somehow ended up at the dock in The Hague, his trial would still be seen as one more example of a poor country, in an underdeveloped part of the world, being targeted by the Western powers manipulating the ICC to their ends.

Why then did the Arab League pass a resolution “putting full responsibility of such horrendous attacks on the Syrian regime, and demanding the punishment and prosecution of all those involved in such a crime at international tribunals, to be tried similarly to those convicted of war crimes”?

The ICC is not going to start bringing cases against Sweden and New Zealand so that it looks evenhanded.

Actually, it probably won’t because Swedes and Kiwis don’t tend to commit international crimes.

It is only a matter of time before the ICC fades away.

Check back in a couple of decades. I seem to recall another scholar predicting the fading away of the state, and that prediction didn’t turn out too well…

6 Responses

  1. LOL. Posner seems to wish that ICC dies. But his argument puts the cart before the horse. International Law developed from a state of anarchy. So what would we do if we had an anarchy within the states? We might decide to create a court to decide who is right in conflicts. The court might not function well in the beginning. So what would be rational to do? Give up the court? No. The rational thing to do is to improve the court.

    Now is the question why American realists wish so hard that international courts (and international law) fail?

  2. just another example of unprofessional and ahistorical right-wing propaganda, as you are partly pointing out.  Should not be shocked at ideological dribble.

  3. “Actually, it probably won’t because Swedes and Kiwis don’t tend to commit international crimes.”

    Now now, certainly we can see the point behind his statement? It’s very unlikely people from rich, powerful countries will sit on the wrong side of the bench at the ICC, and that’s certainly not because they don’t commit crimes. The Srebrenica affair with the Dutchbat should be a mild indicator of this, not to mention mercenaries fighting in foreign wars. And if we ever see 8bis being enforced in our lifetimes, the prime contenders will be “western” nations, who have the military and political capital to wage such wars. Yet it’s much easier to target little countries that the average Joe thinks as “war-torn” and run by “warlords”. There is a very large and uncomfortable political factor in the choice of situations to be investigated and prosecuted (if not in the trials themselves), one that us believers in international criminal law would like to see diminished, but it’s certainly there. The ICC has a limited budget, but 100% of cases being from Africa is no coincidence. It’s also no coincidence that the reluctance to upgrade the prelim. analysis of, say, Colombia (which is arguably just as serious as Côte D’Ivoire or CAR) is influenced by the fact that it would involve taking an uncomfortably close look at American military aid and presence in the country.
    I’m mostly in agreement with you and against Posner’s views, but the “west”-shielding political element to me is clearly present. I don’t fantasize that I’ll see any westerner being even investigated, let alone tried, though a very long list of very suspicious people could be easily drawn up from parliaments, boards of directors, embassies and special rapporteurships.

  4. Given the manner in which the ICC was created and the various countries that are party to the Statute, I doubt there’s even prima facie “‘west’-shielding political element” at work here. Let’s not forget that in the first two cases of the Court, the Democratic Republic of the Congo and Uganda, it was the states themselves that requested ICC investigations of their countries. And the third instance, Darfur, came about as a UN Security Council referral (as noted above in the post). Indeed, four of eight cases were referred by state parties, and two by the SC. This leaves us with two of the eight initiated by the Office of the Prosecutor (OTP) or proprio motu. The current Prosecutor is from Gambia, is she not? And Moreno Ocampo was from Argentina…. I think it is too early in the history of the ICC to come to any firm conclusions about its orientation. Assuming the ICC’s website is up-to-date (!), there is currently 5 of 8 preliminary investigations outside the African continent.

  5. The judges are also from a myriad of nations, but what does the nationality of the staff proves? They are all almost exclusively educated in prominent western schools, if we’re going to judge by resumé. I don’t think that’s very telling either way. The actual policy and the facts say much more. And while you’re right that some situations were referred to by the countries themselves, the OTP could have rejected them. For now, the ICC is, in practice if nothing else, an African court, and that was an investigative policy/strategy decision. Does anyone see it branching out anytime soon?
    Granted I can’t offer more than my scepticism that, say, a NATO commander will ever be investigated. Wait and see, I guess.
    Oh and even if it’s up-to-date, some prelims are kept confidential for some time, so who knows, there might just be a Swede or Kiwi in Ms. Bensouda’s drawers…

  6. While I don’t think either of us will be persuaded to change our minds, I would think there’s nothing of significance to be inferred from one being educated at “prominent western schools.” Many if not most of the world’s foremost Marxists, Liberation Theologians, anti-imperialists, “Third World” intellectuals/activists, and so forth have had such an education, one they’ve drawn upon to struggle, in turn, against the powers-that-be responsible in one way or another for much of the socio-economic and political injustice in today’s world.

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