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.

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.

Harrington’s Final Take on the Kampala Review Conference

by Julian Ku

Having called her out a few hours ago not knowing she was on her way back from Uganda, I thought I should excerpt Joanna Harrington’s final post on the Review Conference, where she offers another great account of the final negotiations.  She also offers this final take, which is more positive than Kevin’s take:

For some, it will undoubtedly seem self-defeating to define the crime of aggression and agree on the modalities for its prosecution only to defer effective entry into force and allow states to opt out of the regime. But it is important to recall that international law, including international criminal law, is a slowly evolving and maturing phenomenon. Instant gratification is not within the culture of international law.

But we have moved forward along a continuum marked by the abortive attempts to prosecute the German Kaiser after WWI for a “supreme offence against international morality”, to Nüremberg’s successful if limited prosecutions of “crimes against peace”, to the eventual establishment of the ICC in 1998 after the Cold War years stymied earlier efforts to establish a system of international criminal justice. From this perspective, and to use an analogy that comes to mind after taking four flights to return home, the caveats and delays built into the Kampala amendments are the last few twists and turns on the final approaches to the destination.

Those impatient to see the ICC exercise its jurisdiction over the crime of aggression may take comfort that it is now simply a matter of time. Others may, however, welcome the delay, viewing the ICC’s jurisdiction with respect to crimes against humanity, war crimes and genocide as of prime importance and a priority for its efforts.

I Bravely Defend Obama’s Sudan Policy Against Mia Farrow

by Julian Ku

Actress Mia Farrow has a scathing op-ed in the WSJ today denouncing Obama’s Sudan policy. The crus of her critique is that Obama is not pushing hard to send Bashir to the ICC.

Last week U.S. Special Envoy to Sudan Scott Gration told the Senate Foreign Relations Committee that although he remains supportive of “international efforts” to bring Sudanese President Omar al-Bashir to justice, the Obama administration is also pursuing “locally owned accountability and reconciliation mechanisms in light of the recommendations made by the African Union’s high-level panel on Darfur.”

Mr. Bashir is indicted by the International Criminal Court (ICC) for war crimes and crimes against humanity, but the African Union Panel on Darfur has clearly aligned itself with Khartoum. One panel member, former Egyptian Foreign Minister Ahmed Al Sayed, said in an interview with an Egyptian newspaper, “The prosecution of an African head of state before an international tribunal is totally unacceptable. Our goal was to find a way out.”

The African Union panel is led by former South African President Thabo Mbeki, who in 2008 dismissed the ICC indictment, saying that it is “the responsibility of the Sudanese state to act on those matters.” Then, late last year his panel proposed a counter initiative to the ICC in the form of a hybrid, Sudan-based court with both Arab and African judges to be selected by the African Union.

But all this is moot since Mr. Bashir swiftly rejected Mr. Mbeki’s proposal. Perversely, Mr. Gration has now thrown U.S. government support to a tribunal that does not and probably will never exist. Even if it did, the “locally owned accountability” he refers to is not feasible under prevailing political conditions, as any Sudan-based court will be controlled by the perpetrators themselves.

Farrow has a point about the sketchy effectiveness of the AU’s mechanism. Moreover, it is hard to reconcile the Obama administration’s support for the AU panel in light of the ICC Statute, which doesn’t (I believe) permit substitutions like this.

On the other hand, I just don’t understand why Farrow and activists like her believe that the ICC trial of Bashir will end up somehow ending the suffering in Sudan.  Essentially, she is arguing that only regime change can solve the problems here.  But she is proposing the removal of Bashir without any political mechanism to replace him and to prevent someone worse from coming to power (e.g. an occupation force).  The Obama policy is realistic (although perhaps not exactly legal).  Farrow’s faith in the ICC as something that can bring peace to Sudan is deeply misplaced

The ICC Begins to Fade in Importance in Sudan

by Julian Ku

The reaction of key countries to the recent Sudan elections electing Sudan’s President al-Bashir are in.  The bottom line seems to be- the elections were deeply flawed, but not so much so that they should be denounced or set-aside.  In the meantime, start planning for the all important referendum on Southern Sudan’s independence, which will require Bashir’s cooperation.  This appears to be the view of the U.S. government, anyway, and it seems largely echoed by the EU.  Interestingly, neither the E.U. nor the U.S. seems to be emphasizing (or even mentioning) the fact that Sudan is continuing to defy its international obligations to turn over individuals demanded by the ICC, including its President.  The focus remains, as it should be, on preserving the delicate peace process in Sudan. But if the U.S. and E.U. do not demand compliance with the ICC, then it is clear that the ICC (at least in the near term) has no chance of completing its prosecutions in Sudan.

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.