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
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.