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Time For The U.S. to Begin Worrying About the ICC?

unnamed-2A couple years back the Pulitzer Prize-winning “fact-checking” site PolitiFact assembled a panel of experts to debunk the claim, laid out in a chain email, that President Barack Obama “wants the U.S. to sign on to the U.N.’s International Criminal Court.”

From the final paragraph:

While the Obama administration has been more willing to engage with the court than the Bush administration, which was strongly opposed to cooperating, Obama has made no sign that he wants to become a full-blown member of the court. Even if he did, doing so would require 67 votes in the Senate, making it essentially a nonstarter. We rate the claim False.

This seems about right: This U.S. has taken a Do as we saynot as we do approach to the ICC, mostly employing it as a hammer of American foreign policy — via, in the words of the Justice Department, “informational” support for “particular investigations or prosecutions” — with little to no fear of the reverse ever coming to pass.

Of course, this approach speaks volumes about the reputation of the ICC amongst leaders of the both the United States’ two major political parties — specifically that the ICC is in actuality a political institution, not a venue of blind justice, out to cultivate power and reach. These politicians understand that to subject American soldiers, politicians, and civilians to its whims would not only be completely irresponsible, it would be bad for the reelection business.

Even as it condemns the chain email authors as yahoos for believing such manifest nonsense, the PolitiFact authors, self-styled cosmopolitans they are, do offer up a bit of a defense of the ICC trotting University of Michigan law professor Steven R. Ratner out to say the Court’s jurisprudence is “generally on par with U.S. law, with small exceptions such as trial by judges rather than a jury, and looser rules for admission of evidence.”

Those “small exceptions” would no doubt seem much larger to someone in the dock — I wonder how Ratner might change if, say, the state of Alabama began unilaterally employing those standards in its prosecutions? — but there is nevertheless an ongoing effort to cheerlead the ICC into taking on the U.S. even without ratification.

In the new report “No More Excuses: A Roadmap to Justice for CIA Torture,” Human Rights Watch labels the ICC a “potential forum for holding US officials accountable for post-9/11 abuses” and urges the Court to “consider opening a formal investigation into US-related abuses in Afghanistan” if the U.S. government fails to “pursue credible and impartial criminal investigations and prosecutions of detainee abuse allegedly committed by members of the US armed forces in Afghanistan between 2003 and 2008.”


While the US has not ratified the Rome Statute and is not a party to the ICC, the court would still have jurisdiction over US nationals with respect to crimes committed in Afghanistan since Afghanistan has ratified the treaty and the abuses took place on Afghan soil. If the prosecutor finds that the crimes rise to the level of war crimes and that US prosecutorial authorities are not adequately investigating the alleged offenses, she could open a formal investigation.

Now,  detainee abuse or war crimes committed by U.S. forces or anyone else — in Afghanistan or anywhere else — should be investigated and adjudicated.

Too often when it comes to discussions of the ICC, however, the question of jurisdiction trumps the question of fairness, which even diehard devotees of the Court struggle to answer — including Human Rights Watch itself!

In a recent wide-ranging essay arguing that liberal democracies should embrace “civil society tribunals” both “for the sake of symbolic indictment and documentation of wrongdoing, and to acknowledge civil society as the moral and legal conscience of humanity” Princeton University Professor Emeritus of International Law Richard Falk takes a moment to examine the conundrum the International Criminal Court presents…even for those inclined to embrace global justice:

The International Criminal Court was itself brought into being in 2002 by an unusual coalition of forces, joining governments with a great many NGOs drawn from around the world in a joint project. What came into being is an international institution with a mandate to investigate and prosecute, but lacking the participation and support of the dominant states, and operating within a framework that up to now has been deferential to the sensitivities of sovereign states in the West.

Yes, one could say that…

Operating in such a limited way has led the ICC in its first decade to focus its attention almost entirely on African leaders, while looking the other way with respect to geopolitical actors. Liberals conceive of this as progress, doing what can be done, and beneficial to the extent that it apprehends some persons who have been responsible for atrocities and crimes against humanity. Critics of the ICC view it as another venue for the administration of ‘victors’ justice’ and an inscription of Western moral hegemony that entails a cynical expression of double standards. Both interpretations are plausible.

Both interpretations are plausible. 

Sounds like a wonderful institution to place one’s faith in, no?