Harold Koh — current Sterling Professor of International Law at Yale Law School and former Legal Adviser to U.S. Department of State from 2009 to 2013 — and Todd Buchwald — U.S. Department of State Assistant Legal Adviser for United Nations Affairs — have unimpeachable credentials as boosters of the International Criminal Court: The pair led the U.S. delegation to the 2010 ICC Review Conference in Kampala and in a recent jointly authored article in the American Journal of International Law proudly describe themselves as “two lawyers…who worked many hours on the United States’ reengagement with the ICC during the Obama administration.”
Yet, despite this devotion, Koh and Buchwald’s lengthy, sobering essay suggests that amendments to the Rome Statue adopted at the Kampala conference — and set to go into effect January 1, 2017 — might very well create an environment wherein genocidal killers are able to operate with more, not less, impunity:
As a policy matter, the ambiguities embedded in the Article 8 definitions risk a profound chilling effect. Supporters of ICC jurisdiction over the crime of aggression claim that fear of individual responsibility will make those responsible for the use of military force think twice before resorting to force. But there is a concomitant risk that a broad or vague definition will over-chill by discouraging states from using force in cases where they should. Thus, states may become unduly reluctant to risk involvement even in military actions that are lawful and appropriate, if such involvement creates an inherent and unpredictable risk of ICC investigation or prosecution. Ironically, one such result could be that the ICC ends up prolonging violence and abuses of human rights by deterring future military actions — for example, ones parallel to the intervention frequently urged in Rwanda in 1994 — aimed at stopping the commission of genocide, war crimes, and crimes against humanity, which the Rome Statute sought to eliminate. It would be hugely tragic if this chilling effect discouraged states from stopping preventable genocide, war crimes, and crimes against humanity, and thus limited states’ responses to post hoc efforts at accountability. These amendments could also chill non– Rome Statute parties by offering a new political weapon to those who would criticize legitimate action as aggression, thereby greatly complicating the task of building the multilateral coalitions that are necessary for such actions.
That’s a pretty high price for humanity to pay just so some overblown egos can get stroked over at the Hague…