It’s pretty much obvious from my two weeks spent talking and listening to people in DC that the continuities between the Obama and Bush administrations outweigh the changes. This is the first post setting out some initial, general and incomplete notes on why I take this impression back to the UK.
This first post will be based on the evolving US position on the International Criminal Court and will be followed by posts on detention, interrogation and trials. There is an attempt to put clear water between Obama and Bush by stressing a new engagement with the human rights institutions that were ignored (and indeed attacked) by the previous administration. There’s no denying that this is taking place. So, as Harold Koh noted in his speech to ASIL, the policy of engagement with the UN Human Rights Council and the ICC is a difference and this was reiterated by several other contributors at that conference, including UN, ICC and NGO spokespersons. What’s interesting here is an explanation US Ambassador for War Crimes Stephen Rapp offered for this. He noted on a panel this morning that we now have 111 state parties to the ICC. Given that fact, he added, there would be little international support for new ad hoc tribunals. Here is an acknowledgement that the international community has acted as a counterweight to US power. The US government it seems would still prefer to deal with the problem of impunity for crimes against humanity, war crimes and genocide on an ad hoc (read politicised) basis, but the international community will not have it. For those realists that believe international law and society is merely an epiphenomenon of material power this is an anomaly that cannot be explained. For me and others that adopt a constructivist approach, it demonstrates the power of international norms and self-images of national identity.
It is also clear, however, that the US is far from becoming a state party to the Rome Statute and will oppose the efforts to have the Court exercise jurisdiction over the crime of aggression. I tend to agree with Koh and Rapp, who both spoke at the ASIL conference, that the efforts to define aggression will be a distraction for the Court as it tries to prosecute crimes against humanity, war crimes and genocide. On this Rapp seized on an Obama quote that was offered to the panel by Ben Ferencz – the son of the Nuremberg Prosecutor who was also in the audience (indeed the panel was dedicated to him). The Obama quote offered related to health care reform – ‘we can no longer let the perfect be the opponent of the essential’. Rapp took this to mean the international community should compromise on its efforts to define aggression and, as Koh suggested, concentrate only on prosecuting crimes against humanity, war crimes and genocide. Rapp added during this morning’s panel that the new administration is happy cooperating with the Prosecutor in the pursuit of justice for the existing cases involving these crimes, and indeed the whole panel commented on the constructive approach of the US delegation at this week’s Assembly of State Parties in New York. The US has also offered to meet with the Prosecutor to discuss further ways of collaborating, something that was also welcomed by the Prosecutor’s office.
Now, I’m conflicted about this approach. On the one hand it’s good that the US is cooperating with the Court and if it expedites justice in the cases being investigated then that has to be welcome. But at the same time, the Obama administration adopts the same ‘concerns’ with the Rome Statute as the Bush administration and refuses to even consider the possibility of putting a (re)signed Treaty before the Senate for ratification. Admittedly the chances of ratification are small given the 2/3rds majority criteria, but there are still aspects of the US position on the Court that are troubling. Specifically, the policy of assisting a court to prosecute the crimes of others while insisting on exemptions from that court’s jurisdiction is essentially a continuation of the ad hoc approach to international criminal justice, and as I point out in the final chapter of my book on the ICC, it cannot help but challenge the legitimacy of the Court in the eyes of the communities that are the subject of an ICC/US investigation. Now, as I said one should not exaggerate the cost of the US position especially if it brings justice to those who have committed crimes against humanity, war crimes and genocide. It would be better if the US pursued this policy of cooperation as a state party but we should not let perfection be the opponent of the essential. Yet at the same time, we shouldn’t kid ourselves that this essentially hypocritical position is cost free. Justice will inevitably be seen to be selective – particularly when, as Ben Davies of Toledo repeatedly reminded the conference, there are outstanding questions regarding accountability for the Bush administration’s act of aggression against Iraq and for its acts of torture in the wider war on terror.
So what exactly are the Obama administration’s concerns? Based on Rapp’s presentation this morning it seems to me there are two kinds and these map on to what I called in my book a reconcilable and an irreconcilable position. The reconcilable objections – and again this is only based on listening to Rapp this morning – seem to be those to do with aggression and the definition of war crimes. So for instance, and Koh pointed to this in his speech, there is doubt what the term ‘manifest’ means in proposals to define the crime of aggression, he also suggested that aggression can’t merely mean a crossing of borders but should be on a scale that leads to the destruction of whole society like Iraq and Kuwait. His choice of this example and the decision not to include US invasion of Iraq was obvious and no doubt embarrassing to some. But nonetheless, this US concern could be reconciled if the review conference decided simply to abandon efforts to define aggression and concentrate on the three crimes it has existing jurisdiction over.
The other objection that falls into the reconcilable category is the concern that the definition of war crimes says the court will look ‘in particular’ at crimes that are systematic and part of plan. To the US this suggests it can look at other acts that are not part of a plan and that raises concerns that the individual ‘mistakes’ rather than systematic policies will draw the attention of a prosecutor, particularly one that sees a political need to prosecute a US soldier in order to ‘balance’ the charge sheet and demonstrate impartiality as well as independence. This, Rapp suggested, was a reconcilable objection. Either the phrase ‘in particular’ be deleted or the US waits to see how the jurisprudence and practice emerges on this. If the only war crimes prosecuted are those of a systematic nature then maybe the US can live with the court. But of course that will take years to discern and even then …
Still, one might give Rapp, Koh and the Obama administration the benefit of the doubt and recognise that the constructive engagement is substantively different to the Bush administration. But then there was a strange moment in Rapp’s presentation when the irreconcilable position demonstrated its continuing influence. Rapp suggested the US is uniquely exposed to the judicial process because of its great power status and because, to repeat former Secretary of State Madeline Albright, the US is ‘the indispensable nation’. Now this is pure exceptionalism (despite Bill Pace of CICC denying that the new administration was exceptionalist). It is a reality that US power is needed for international security operations that other states cannot fulfil, but it simply does not follow that the US should fulfil this role by being exempt from the rules of international criminal justice, the same rules that in many ways define what is to be a civilised member of international society. We do not (or maybe the US does?) put our executive above domestic law when it enforces that law, so why should the United States expect international society to do the same.
The argument I advance in my book is that US opposition to the Court ultimately stems from this exceptionalist position. It is a position deeply embedded in a political culture that assumes the US is a different kind of great power, one with a particular mission; and the way to demonstrate that difference is to exempt itself from the laws that it expects others to abide by. The fact that the Obama administration still feels the need to refer to this demonstrates how powerful that narrative is. Indeed Rapp articulated this in a different formulation this morning. For example, he suggested at one point that there was something wrong with ‘putting the protector in the same box as the aggressor’. I took this to mean the state intervening to stop a humanitarian atrocity should not be held to account before the same laws as those committing the atrocity. This is a dangerous conflation of jus ad bellum and jus in bello such that the side claiming to be just claims a right to act without restraint, or an exemption from the accountability mechanisms of the community on whose behalf it is acting. The Bush administration took that argument to the extremes and I don’t expect the Obama administration to follow (see the forthcoming post on interrogation and trials). But still, this unequal application of the law is simply not in the best traditions of American or cosmopolitan conceptions of democracy and accountability. There’s still, therefore, plenty to be concerned about on US policy toward the International Criminal Court, despite the change of administration.