“Impunity? Where?”
ICCSN Basel: What was the position of the US towards the establishment of an International Criminal Court at the Rome Conference in 1998?
Claudio Guler: It was always unlikely that an international criminal court would emerge from the Rome Conference in 1998 that Washington would find agreeable. The grounds for the aversion are manifold. They largely revolve, however, around questions of sovereignty and state power within the international system.
Among other misgivings, US policymakers are concerned about the potential for politicization of the Court. They also fear the possible legal ramifications for US citizens and members of the US armed forces in particular. The latter, unlike those of any other state today, operate (and have obligations) in almost every corner of the world. In theory, and if working properly, the American military justice system, a system founded on the same law of war principles as the Court, holds its soldiers to the international standard. In practice, accountability for top ranking military and civilian personnel often remains wanting. Lastly and more generally, the US was at the time of the Rome Conference in 1998 and remains today, the sole superpower. Super and great powers guard their sovereignty jealously, because they can. Subscription to a supranational criminal court serves few rational purposes from a power-maximizing strategic point of view.
At the Conference, the US, making use of compromises intended to induce it to join the Court proffered by advocates for an autonomous institution, managed to secure a UN Security Council referral mechanism for non-state parties.1 The US could hence use the Court – unless checked by another permanent member – to target weak adversaries, while protecting itself via its veto.
In contemporary international criminal justice, power relations and understanding their role is paramount. Although execution of the law by international jurists is largely consistent and objective, the essential prerequisite, jurisdiction, is often arbitrary and deferential to power. This is not to suggest that weak actors suspected of committing egregious crimes are not culpable and deserving of prosecution using an objective lens. It simply means that a double standard, upheld by the great powers, exists.
The power calculus aside, the values and principles embodied in the Court and its charter are those of the Western-led liberal international order. So US accession in the long run is not out of the question. Again, the relative political, military and economic decline of the US will likely have to progress substantially though, before accession becomes a viable option.
The Court and the Rome Statute do enjoy a support-base with deep roots in the US. The largest delegation to the Rome Conference was the American one. It played a largely constructive role. US-based civil society and academic groups and experts made important contributions.2 Ambassador at Large for War Crimes Issues David Scheffer represented the Clinton administration at the Conference, and later signed the Statute on behalf of the President. Citing ‘significant flaws,’ however, President Clinton never submitted the treaty to the US Senate for ratification – a still insurmountable hurdle in its own right.3
ICCSN Basel: In February 2011, the US supported UN Security Council Resolution 1970, which refers the situation in Libya to the International Criminal Court. In 2005, the US supported the Security Council referral of the situation in Sudan to the ICC. However, it still has not ratified the ICC Statute and does not (yet) accept (complementarity) ICC jurisdiction on its territory or over its nationals. Why?
CG: Ghaddafi in Libya and Bashir in Sudan are the weak actors. Both countries have limited strategic import for the US, and Washington clearly prefers regime change here but does not intend to expend its own resources.
Bashir is a nuisance for Washington. President Bush and Colin Powell, his secretary of state, both characterized the crisis in Darfur as genocide, elevating its profile. Military intervention, with an overstretched force in Afghanistan and Iraq, was off the table. An ICC referral in Bush’s second term, one far more hospitable to international law, was a good way to be seen as ‘doing something’ on an otherwise neglected humanitarian catastrophe.
Ghaddafi is likewise a nuisance for Washington. With the outbreak of civil war in Libya and threats by Ghaddafi to commit systematic violations of human rights, President Obama seized the opportunity to follow the British and French lead to show renewed US support for human rights after the Bush years and to put America ‘on the right side of history’ in the Arab Spring.
Additional, less cynical factors also pushed the US to make use of the Court in these cases. Most significantly, the US has an extensive legacy of backing international criminal tribunals, including at Nuremberg and Tokyo, and for Rwanda, the former Yugoslavia and Sierra Leone.
An insightful question is why China refrained from blocking either referral? One explanation is that notions of human rights and justice are increasingly universal, and as such command respect globally. This sets the stage for the concept of a normative tidal wave. China, notwithstanding its significant oil investments in both countries, likely withheld its veto because doing so would make for bad press that the added benefits of increased short-term stability and slightly easier access to oil could not outweigh. The US is likewise bound by expectations of fair and just behavior, especially in light of its frequent rhetorical appeals to them.
This is the light at the end of the tunnel for international criminal justice advocates. If you build the institutions, find the stakeholders and start the wheels turning, eventually the soft power, normative tidal wave of international justice might just overwhelm the fortifications of the great powers; ending impunity once and for all. An aspiration not to be overstated in my opinion, as great powers are likely to remain very powerful for a long time to come, with momentum accruing, staying outside of the Court does carry risks, and complicates a state’s ability to shape the Court and its actions in the future. As the saying goes, “If you’re not at the table, your probably on the menu.”
ICCSN Basel: A February 2011 report from Amnesty International (USA: See no evil. Government turns the other way as judges make findings about torture and other abuse, available at www.amnesty.org) concludes that “a number of federal and military judges have now made findings in relation to torture or other ill-treatment in the context of habeas corpus or military commission cases of former or current Guantanamo detainees”, but that no ” impartial investigations directed toward prosecutorial action” are taking place to follow up those findings. Is the Obama administration taking action in this regard?
CG: Not really. He has ordered a stop to the use of ‘enhanced interrogation techniques’ (aka torture). He tried to close Guantanamo Bay prison but failed. He suspended military commissions, hearings in which due process rights are exceedingly pliable. And soon thereafter reintroduced them with tweaks.4 So I guess he’s trying not to make things worse.
As concerns the past, however, based on what I know, the Obama administration has systematically turned a blind eye to allegations of illegal interrogation practices. The US has ratified the Convention against Torture.
Former president Bush and vice president Cheney boasted publicly about their decisions to authorize torture.5 The judicial findings in the Amnesty report are concerning. And coming from a reputable source, they merit closer scrutiny.
President Obama and company do not want to rock the boat, however; highlighting instead the importance of looking forwards, not backwards. A wholesale probe into these and similar allegations would unleash a political firestorm. It’s political suicide. In all likelihood, Obama could not fend off the charges of politicization. And the move would further polarize an already troubled country suffering the steady drumbeat of an economy in secular decline. So politically, it’s just too hot a potato to handle. But fear not, a token gesture has been made: Special Prosecutor John Durham has a mandate from the President to investigate allegations of torture. The catch is, he keeps coming up mostly empty-handed.
Two lawyers who wrote intellectually dubious legal memorandums in support of the Bush administration’s use of ‘enhanced interrogation techniques,’ John Yoo and Jay Bybee, have gotten off with a slap on the wrist.6 Neither was even disbarred.7 Ditto Major General Geoffrey D. Miller, the man who brought ‘enhanced interrogation techniques’ to Guantanamo, Abu Ghraib and Afghanistan.8 Obviously, former Bush administration officials are immune.
In the US, courts apply the law but do not commence prosecutorial actions. Hence even if they make findings of illegality, it is up to the executive branch to bring charges. As the Amnesty report details, the administration sidesteps argumentation of evidence suggesting
the use of torture wherever possible, invokes the state secrets privilege when necessary and otherwise generally desists from taking action.
Many of these allegations come from military commissions and related habeas corpus cases. The US Supreme Court has attempted to ban military commissions and grant prisoners at Guantanamo Bay due process rights several times.9 Congress, however, simply passes legislation to circumvent the rulings’ effects.10
In sum: The courts can’t prosecute. The executive doesn’t want to. And the legislature fully backs the executive, at least on this one. Impunity? Where?
What advocates of international criminal justice have left as recourse then is stigmatization. Name and shame the perceived offenders. Add on to the normative tidal wave and hope that someday it becomes inescapable. That, in a nutshell, is what Amnesty does.
ICCSN Basel: At the Kampala Review Conference in June 2010, States Parties to the ICC Statute reached a consensus with regard to the crime of aggression. They consented on definition of this crime as well as on the conditions for the exercise of ICC jurisdiction over it. Whether ICC jurisdiction over the crime of aggression is activated is subject to a decision to be taken after 1 January 2017 by at least two-thirds majority of States Parties (art. 121 ICC Statute). Did the US play an active part in this Conference, and does the outcome have an impact on the US position towards the ICC?
CG: The US was present at the Kampala Review Conference. Following the adversarial Bush years, the Obama administration, represented by Ambassador at Large for War Crimes Issues Stephen J. Rapp, used the opportunity to further reset the US-ICC relationship. The meeting was only the second Assembly of States Parties (ASP), the governmental body that oversees the Court, that the US participated in. The other was the year before. The Bush administration refused to take part in any ASP.
In 2009, Ambassador Rapp led the Obama administration’s policy review on the US-ICC relationship with an eye toward identifying a cooperative way forward. He noted, however, that US accession was unlikely for the “foreseeable future.” Secretary of State Hillary Clinton lamented in 2009 that US absence from the Court was a “great regret.”
Despite its participation as an observer to the Kampala conference, Washington did not achieve its primary objective: blocking adoption of the crime of aggression. The outcome gives rise to some food for thought: Have ASP members given up on seeking to accommodate the US, as they did in Rome twelve years earlier? Is this a sign of declining US influence? Harold Koh, State Department Legal Advisor, framed his concerns in the run-up to Kampala by asking whether adopting the crime of aggression “will truly strengthen the Court at this critical moment in its history?” Other US experts took issue with the definition of or jurisdictional mechanisms for the new crime.11 Others still, encouraged by Benjamin B. Ferencz, the last surviving member of the Nuremberg prosecutorial team, urged adoption.
Although the new crime of aggression is probably a net negative for US public opinion and Congress, it is unlikely to affect substantive US policy much. Even after 2017, the Rome Statute contains an ‘opt out’ clause that may allow the US to join the Court but still remain immune from the new regime.12
Considerable confusion surrounding exactly how this all plays out in practice remains.13 Hence, the Obama administration is likely to maintain a ‘wait and see’ approach. I nevertheless expect it to continue to cooperate with the Court and to provide it with rhetorical support.
Interview: Kathrin Betz
____
1 Schiff, Ben. Building the International Criminal Court. New York: Cambridge University Press, 2008; page 71, 170.
2 Schiff, Ben. Building the International Criminal Court. New York: Cambridge University Press, 2008; page 71, 170-181.
3 http://www.amicc.org/docs/Clinton_sign.pdf
4 http://www.salon.com/news/opinion/glenn_greenwald/2009/05/15/military_commissions
5 http://www.csmonitor.com/World/terrorism-security/2010/1109/In-interview-about-Decision-Points-memoir-Bush-stands-by-waterboarding | http://abcnews.go.com/Politics/t/story?id=6464697&page=1
6 http://www.salon.com/news/opinion/glenn_greenwald/2008/04/02/yoo | http://fl1.findlaw.com/news.findlaw.com/wp/docs/doj/bybee80102mem.pdf
7 http://balkin.blogspot.com/2010/02/justice-department-will-not-punish-yoo.html
8 http://www.nytimes.com/2006/08/03/opinion/edit-3-thu.html?ref=geoffreydmiller
9 See Rasul v. Bush, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, Boumediene v. Bush.
10 See Detainee Treatment Act of 2005, Military Commissions Acts of 2006 and 2009; also http://www.fas.org/irp/offdocs/eo/mo-111301.htm
11 http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?lng=en&id=116618
12 http://www.amicc.org/docs/AggressionQA.pdf
13 http://www.ejiltalk.org/what-exactly-was-agreed-in-kampala-on-the-crime-of-aggression/
____
Original Print: http://www.iccsn-basel.ch/index.php?option=com_rokdownloads&view=file&Itemid=96
