Standard takedown of the ICC

Last week’s Weekly Standard featured a long cover essay on the International Criminal Court by Jeremy Rabkin, a George Mason legal scholar and long-time court critic. The hook was the conference earlier this summer in Kampala, Uganda during which the court’s members defined aggression and gave the court jurisdiction over that crime. The Rome Statute that created the court listed aggression as a core crime, but the absence of a definition meant that it couldn’t be prosecuted. 

At Kampala, the court’s members finally settled on a definition that draws heavily on the UN Charter and decades-old UN General Assembly resolutions. To put it mildly, Rabkin does not see this breakthrough as positive. Endowing an international court with the power to prosecute leaders for aggression, he argues, “implies the most fundamental change in the structure of international affairs since 1945.” He chides the Obama administration for acquiescing to that change.

Rabkin constructs a good case that the definition adopted by the court is tougher on states than non-state actors, including terrorist networks. He also convincingly demonstrates that all sorts of potentially useful interventions might fall under the definition, including humanitarian missions and strikes against terrorist cells hiding in third states. Identifying aggression requires assessing the justice of the underlying cause.  It’s for that reason that several key human rights organizations agree that this is a dead end for the court. Human Rights Watch has argued that tackling the highly politicized question could “diminish the court’s role—and perceptions of that role—as an impartial judicial arbiter of international criminal law.”)

Rabkin wants to argue that the newly defined crime will be used as a stick to beat the United States and key allies. As he picks his way through the convoluted compromise reached at Kampala, however, he seems to realize that the United States—not a member of the court—is actually quite well insulated. Jurisdiction over aggression doesn’t become operable until 2017; member states have the right to opt out; and only nationals of states that have fully accepted the court’s jurisdiction over the crime can be charged. It would be much, much harder to charge an American leader with aggression than with the other crimes covered by the court.

At this point, the essay stops being about aggression and becomes a broad and by now  familiar attack on the court as a naive and dangerous attempt to control force through law. The ICC, Rabkin argues, “ratifies a new expectation that military policy can, indeed, be settled by lawyers.” At the heart of Rabkin’s alarm is a judgment that the court will chill the necessary activities of countries like the United States while having little effect on rogues and despots. It’s an argument that has some merit in the abstract. Liberal democracies almost certainly will take more seriously the possibility of being found in violation of international law. But it’s well past time to stop arguing about the ICC in the abstract. We now have almost a decade of experience with the court. What does it tell us?

The evidence on whether the court constrains bad actors is mixed, but Rabkin does not appear inclined to fairly consider it. He minimizes the degree to which an ICC indictment has constrained Sudanese president Omar Al-Bashir’s movements. Because Bashir received a formal invitation to the climate change summit in Copenhagen, Rabkin implies that the indicted president travels the world freely. In fact, it was clear to Bashir that he would be arrested immediately if he accepted. Bashir will likely never again set foot in Europe, the United States, or Latin America. More broadly, there is some evidence that the court has modified the behavior of miltia commanders and national military leaders.  Rabkin doesn’t even consider it.     

On the other side of the equation, Rabkin presents zero evidence that the court’s existence has prevented the United States from taking the steps it deems necessary to defend itself. In fact, he inadvertently produces evidence to the contrary. He worries that the ongoing flurry of drone strikes in Pakistan might be deemed aggression. But they might also expose U.S. commanders and leaders to charges of war crimes, and yet the Obama administration has embraced them. What steps exactly would the United States have taken post-9/11 that it did not for fear of the ICC? And if the Obama administration—with all its reverence for international law—appears not to be chilled by the ICC, what future American administration will be?

For all his talk of how the world actually works, Rabkin is curiously resistant to examining the record of the last decade.  Reading the essay, you would have no idea that in April 2002 he warned that indictments against Americans and Israelis were imminent:

We can’t now say for sure what will happen at The Hague. For example, we can’t know for sure whether the first indictments of Israelis will come down in July or August. We can’t know whether Americans will be indicted as early as September or only in November. But we know the court will be a major disappointment to its sponsors if it has not produced some resounding indictments by Christmas.

Almost ten years into the court’s existence—and despite the invasions of Afghanistan and Iraq, drone strikes and commando raids around the world, and accusations of abuse at Bagram, Abu Ghraib, Guantanamo, and assorted "black" sites—the prosecutor hasn’t pursued a solitary American or American ally. Instead, he has focused on mass killings, rapes, and recruitment of child soldiers in Congo, Uganda, Sudan, and Kenya.

It turns out that Rabkin is not very interested in what the court actually does. He’s most interested in what it symbolizes. Perhaps for that reason, he has a very hard time imagining that it could actually be run by serious, professional lawyers and judges rather than ideologues.