Almost persuaded on the ICC

Julian Ku is almost persuaded by my take on the recent Weekly Standard broadside against the ICC, but not quite. 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 ...

By David Bosco, a professor at Indiana University’s Hamilton Lugar School of Global and International Studies.

August 24, 2010, 4:55 PM

Julian Ku is almost persuaded by my take on the recent Weekly Standard broadside against the ICC, but not quite.

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.

I don’t concede that at all. And my first piece of evidence is the United Kingdom, an ICC signatory deeply involved in the Iraq War, the Afghanistan conflict, and various other aspects of the war on terror. Individuals and NGOs have lodged complaints against the UK with the ICC. And the response from the prosecutor? Deafening silence—no UK soldier or politician has been formally investigated. I think the prosecutor’s office has made a determined effort not to step on the toes of major powers at this point. And in a way, major powers that are signatories have an added advantage in that they help select the prosecutor and the judges and (perhaps most important) fund the institution.

This actually goes to the heart of the disagreement about the ICC: it’s really a matter of risk assessment. I’ve never disputed that U.S. officials could be prosecuted by the court (although with aggression there is very little daylight even if the U.S. were to ratify the Rome Statute). I have always doubted that they would be. And so given what the U.S. gets out of the court in terms of its work in places like Uganda, Sudan, and Congo, joining and supporting the institution is a good investment.

One of the aspects of the debate that has always puzzled me is how ICC opponents bridle at legal exposure they willingly accept in other realms. If the WTO’s appellate body went rogue, for example, it might order the shuttering of the U.S. economy. We accept that very minimal risk because of what we get from the institution.

David Bosco is a professor at Indiana University’s Hamilton Lugar School of Global and International Studies. He is the author of The Poseidon Project: The Struggle to Govern the World’s Oceans. Twitter: @multilateralist

Tag: ICC