[Peace-discuss] Rogue regime

[C. G. Estabrook]

	February 08 2010
	Obama to Say 'No" To International Criminal Court
	Obama and the ICC
	By Rob Grace
	Law and Security Strategy

So it seems the Obama administration has decided not to join the International 
Criminal Court (ICC), a decision that comes as no surprise. The news comes from 
Jurist, which reported last week about a talk given by the U.S. 
Ambassador-at-large for War Crimes Issues, Stephen Rapp:

"Speaking at the University of Pittsburgh School of Law, Rapp said that while 
the US has an important role in international criminal justice, it is unlikely 
to join the ICC anytime soon. Rapp cited fears that US officials would be 
unfairly prosecuted and the US’s strong national court system as reasons it 
would be difficult to overcome opposition to ratification."

The Obama administration began reviewing the U.S.’s ICC policy last year, living 
up to an Obama campaign promise. This promise, though, was always framed in a 
way that made rejection of the ICC seem inevitable. For example, here’s the 
Obama campaign’s 2008 stance on the ICC:

"Now that it is operational, we are learning more and more about how the ICC 
functions. The Court has pursued charges only in cases of the most serious and 
systemic crimes and it is in America’s interests that these most heinous of 
criminals, like the perpetrators of the genocide in Darfur, are held 
accountable. These actions are a credit to the cause of justice and deserve full 
American support and cooperation. Yet the Court is still young, many questions 
remain unanswered about the ultimate scope of its activities, and it is 
premature to commit the U.S. to any course of action at this time."

"The United States has more troops deployed overseas than any other nation and 
those forces are bearing a disproportionate share of the burden in the 
protecting Americans and preserving international security. Maximum protection 
for our servicemen and women should come with that increased exposure. 
Therefore, I will consult thoroughly with our military commanders and also 
examine the track record of the Court before reaching a decision on whether the 
U.S. should become a State Party to the ICC."

Though far from a glowing endorsement of the ICC, this position was a radical 
departure from that of Obama’s predecessor. President Bush officially renounced 
the Rome Statute (signed by Clinton in 2000) and signed the American 
Service-Members’ Protection Act (also known as the Hague Invasion Act), which 
grants the President the authority to use “all means necessary and appropriate 
to bring about the release of any US or allied personnel being detained or 
imprisoned by, on behalf of, or at the request of the International Criminal 
Court”. Obama’s position is a reversion to the Clinton policy of showing support 
for the court while not submitting to its jurisdiction (though Clinton signed 
the Rome Statute, he expressed “concerns about significant flaws in the treaty”).

The U.S. will likely show this support later this year by attending the ICC 
review conference in Uganda. The most significant topic on the conference’s 
agenda is the ICC’s ability to prosecute individuals for crimes of aggression. 
The ICC can currently prosecute individuals for crimes of genocide, war crimes, 
and crimes against humanity, but the Rome Statute’s Article 5 states of aggression:

"The Court shall exercise jurisdiction over the crime of aggression once a 
provision is adopted in accordance with articles 121 and 123 defining the crime 
and setting out the conditions under which the Court shall exercise jurisdiction 
with respect to this crime. Such a provision shall be consistent with the 
relevant provisions of the Charter of the United Nations."

Thus the ICC’s ability to prosecute aggression hinges on the court’s ability to 
define the word. This is why the Assembly of States Parties, the ICC’s 
legislative body, established the Special Working Group on the Crime of 
Aggression in 2002. The Group’s Chairman wrote a “non-paper” last year taking a 
stab at the task.

However, this endeavor, and the U.S.’s participation, even as an observer, is 
controversial. As Kenneth Anderson at Opinio Juris, argues:

"One of the questions raised by the crime of aggression discussions among a 
group of states formed as a treaty-club is whether, and to what extent, the 
whole effort is a mechanism for “contracting around” the Security Council. Or, 
more precisely, contracting around the legitimacy of the Security Council. 
Ostensibly an exercise in private voluntary ordering … but simultaneously 
presenting a serious challenge, at least potentially, to the public regulatory 
ordering of the Security Council and its authority."

The Security Council, in practice, determines which uses of force violate the UN 
Charter. As I noted last year when discussing the legal controversies 
surrounding the U.S. entry into Afghanistan in 2001, this fact leads to strange 
conclusions. For example, Thomas Franck explained that if the Taliban deemed the 
U.S. invasion of Afghanistan illegal, the Taliban could simply “appeal to the 
Council to institute collective measures against its attacker under Chapter 
VII.” If the U.S., a veto-holding Security Council member, would be happy to 
deem its own military action illegal and participate in collective actions 
against itself, this solution might seem sensible. However, states don’t tend to 
behave that way. And there is no institutional check on the Security Council. 
The International Court of Justice takes the position that it cannot rule on the 
legality of Security Council resolutions. The General Assembly cannot pass 
binding resolutions. Thus, if the ICC gets into the aggression-defining and 
aggression-prosecuting business, it could alter the world’s international 
institutional landscape. This would be a good thing.

-- 
This message has been scanned for viruses and
dangerous content by MailScanner, and is
believed to be clean.