Yesterday I participated in an excellent roundtable discussion on the ICC ten years on. I’d like to thank Eric Leonard of Shenandoah University for putting the roundtable together. I’ve posted my comments below.
I guess my invitation to participate stemmed from my 2007 book on American opposition to the ICC, so I thought I’d recap my main arguments in that book, talk a bit about US policy since then and end by offering a few reflections on what that means looking forward.
The book’s question and argument
My initial question in the book is what did the creation of the ICC tell us about the changing nature of international society? And I followed this up with the question of what did US opposition to the Court tell us about America’s relationship to international society?
Now, to answer these questions I adopted an English School framework for analysis, which essentially located the pre-ICC practice of international criminal justice in a Grotian international society and suggested that the creation of the ICC moved international society in a Kantian direction.
This hinged, if you like, on the distinction between selective and universal justice.
So, in a Grotian international society the individual is the subject of international law, both in terms of recognising basic human rights and allocating individual criminal responsibility for the violation of those rights. But it is also the case that the practice of criminal justice is still very much dependent on states through their exercise of national, territorial or universal forms of jurisdiction. And because states have interests that impact on the decision of when and where justice is done, then the risk that justice is partial or selective is high.
This of course was one of the criticisms of the ad hoc tribunals. The fact that the Security Council created international tribunals for Yugoslavia and Rwanda indicated a deepening of what the English School would call “solidarism”. But it also raised the question of why not courts for other situations.
There was, in other words, what Alexander Wendt might have called an ‘instability’ in the Grotian conception of international society – between its professed commitment to universal justice and its practices that encourage selectivity (see my chapter in Steven Roach’s book)
Out of this instability emerged the movement to create not only a permanent court but one that was independent of the Security Council; and this ideal was of course embodied in Article 15 of the Rome Statute.
So what I suggested that by shifting the decision on when and where justice should be done from the Security Council to a supranational institution, the Rome Statute was potentially helping to constitute what English Schoolers might call a revolutionary conception of world society.
I quickly back off from this claim, however, because there is of course a complex relationship between the court, the Security Council, and the society of states more generally. I don’t have time to get into that here, but you’re probably familiar with it anyway. My point, however, is that the Court’s independence did mark a qualitative shift in the character of international society, which I characterised in terms of shift toward a Kantian order.
Now, I think it’s fair to say that it was the Court’s independence from the Security Council and the fear that that would lead to the politicised prosecution of American officials that motivated US opposition. Clearly there were arguments about national sovereignty and democratic accountability but the US position cannot be called “sovereigntist”. This is because it always qualified its opposition to the ICC with support for universal justice and the idea of ad hoc tribunals.
In other words, the US under Bush supported the practice of international criminal justice through mechanisms like the Security Council that allowed it to control when and where justice was done. Stepping outside the English School framework, one might say this was a form of liberalism but it was not a Kantian form of liberalism. It was instead a hierarchical form of liberalism that enabled the US to advocate international criminal justice while rationalising exemptions for itself.
Now, we saw this in action with the Bush administration’s support for Security Council 2005 referral of the situation in Darfur. That was welcomed by liberals as a shift in attitude, which of course it was. But there were potential costs to the Court because of course it created the impression of double standards and this created new instabilities. This is captured in the question, how could it be legitimate for the SC, which after all contains three non party states among its permanent members, to refer another non-party member (Sudan) to court?
In fact there might be a paradox at work here – the more the US cooperates with the court while remaining a non-party, the stronger the perception of double standards and the greater the risk that other states will not cooperate.
US policy under Obama
Which brings me to Obama and the more cooperative approach to the Court. Clearly there has been a more engaged approach and cooperation. So for instance, the US has been attending Assembly of State Parties in its observer capacity, it attended the 2010 Review Conference in Kampala, it has ‘provided assistance in response to specific requests from the ICC prosecutor and other court officials’, and it voted for Resolution 1970 referring the Libyan situation to the Court. It has to quote the State Department’s legal adviser Harold Koh pressed the ‘reset’ button.
This might be all well and good from a liberal perspective. But if my contention is right – that the increased cooperation of a non party state exacerbates the impression of double standards – we should be seeing state parties questioning the legitimacy of the court and questioning their own commitment to cooperate with it.
And indeed there is such evidence. The African Union, for instance, has refused to cooperate on the arrest of Sudanese President Omar al-Bashir and in July 2011 it extended its non-cooperative stance to include the Libyan arrest warrants.
Now, one might claim that this concern centred on the specific question of peace versus justice in these particular cases, as well as the stance in favour of a diplomatic approach favoured by the AU. But the hierarchy question – (who decides when justice is done) – and the double standards question – (why should non-party states decide) – runs through this issue.
So, Article 16 of the Rome Statute enables a pause in the prosecutorial process if there is a threat to international peace and security – but of course it is the Security Council that decides when that is the case and that means three non-party states (Russia, China and the US) can veto such a resolution. African states see this as double standards (see Jalloh, Akande and du Plessis in African Journal of Legal Studies 4 2011 pp.5-50). Why, they ask, should non-party states have this decision making power?
It does not help the matter when one realises that Article 16 was invoked in 2002/3 by the Security Council to exempt US peacekeepers from the court’s jurisdiction. Again, the Court seems to be accommodating the concerns of non-state party peacekeepers while ignoring the concerns of the AU.
Such was their frustration that they have tabled an amendment to the Statute allowing the General Assembly to make the deferral decision.
Now, this criticism would probably exist even if the US was a state party. But I’d suggest that the feeling of frustration is exacerbated by the fact that Article 16 empowers non-party states. And this increases a determination on the part of certain state parties not to cooperate with the Court.
So my general point in conclusion is this: there may be benefits to having the US cooperate with the court as a non-party member but there are also legitimacy costs that are creating new instabilities.