Thursday, March 16, 2017

“The High Costs of Abandoning International Law” and Implications for the International Criminal Court: A Response

The Boston Globe recently published an article by Jeffrey D. Sachs titled “The high costs of abandoning international law.”  Sachs explains the role of international law within the United States, and his points are particularly striking when examining the United States relationship with the International Criminal Court (ICC). 

Fact Check
While the article provides useful insights, there are two errors regarding the International Criminal Court in Sach’s presentation. First, the treaty that established the International Criminal Court is the Rome Statute (1998), but the article implies that the name of the treaty is the “International Criminal Court (1998).” Second, the US did not vote “against the ICC in the UN General Assembly.” The vote on the ICC occurred at the Rome Conference, not the General Assembly. 

Following a Principle of Jurisdiction
The article emphasizes a section of the Trump Administration’s draft trade policy agenda which says:
“Ever since the United States won its independence, it has been a basic principle of our country that American citizens are subject only to laws and regulations made by the US government – not rulings made by foreign governments or international bodies. This principle remains true today.”

Yet, it has been a long-established principle of international law that anyone who commits a crime in a state, can be tried under that state’s jurisdiction. The United States has used this understanding of jurisdiction to prosecute those who are not American citizens visiting the United States, and other states have exercised jurisdiction over Americans in their territory. Hence, if abroad, American citizens are subject to the laws and regulations of the state they are in, regardless of what American laws dictate. This principle of jurisdiction has not typically been one in contention.

The dismissal of this principle is not new. As Sachs acknowledges, many politicians reiterated this misunderstanding about international law. In fact, they relied on this incorrect notion of a jurisdictional clash in many of their explanations as to why the US would not ratify or accede to the Rome Statute. American politicians have repudiated the idea that if American citizens are responsible for crimes under the Rome Statute’s jurisdiction in the territory of state parties to the ICC, they can fall under the ICC’s jurisdiction. This idea is not out-of-step with how states have exercised jurisdiction for centuries. 

In American Interests
The article also examines the notions of “US primacy”  and “American actions alone.” Both ideas foster anti-multilateralism, arguing that the US does not need international cooperation to secure its interests. However, the article notes that various international treaties demonstrate the necessity of international legal agreements for our society to function, and for US interests in “America’s security and economic interests – in the sea, or the environment, or armaments” to be maintained. There are a plethora of regulations and institutions established under international law that benefit Americans. For example, the international aviation law allows planes to fly without running into each other, international maritime law allows ships to carry cargo between states and international postal law allow letters to be delivered. These branches of law have created institutions and regulations that facilitate these functions, which further the interests of the United States. The United States must remain a part of these treaties for our standard of life to be maintained. In other words, the US cannot act alone in the world, if it wishes to maintain its interests. Global problems exist that impact Americans and require global solutions.

One of these solutions is the ICC. It is in the United States’ interests that justice prevails and that the world brings those responsible for atrocities to justice. US practical support for various ICC cases, its War Crimes Rewards Program and its Security Council vote for referral of Libya to the ICC evince these interests. The United States cannot procure global justice, peace and security alone. Nor is it in our interest to try doing so.

History of Resistance from Politicians, not the Public
The article also correctly acknowledges that these myths are not merely a problem of the Trump Administration. Recent US history features resistance to international law, and its refusal to accede to the Rome Statute is invariably a symbol of such opposition. However, while politicians might not support the Rome Statute and other international treaties, several treaties, including the Rome Statute enjoy very broad public support in the US. In fact, a poll by the Chicago Council on Global Affairs found that 72% of Americans thought the US should “participate” in the Rome Statute, and this is not partisan support. 65% of “core Trump Supporters” agreed that the US should support the ICC. This public support has persisted despite the failure of politicians to ratify or accede to these treaties.

Written by Taylor Ackerman

Tuesday, March 07, 2017

Rule of Law

In its December newsletter, President Lucinda Low of the American Society of International Law (ASIL) took a diplomatic but strong stance on the importance of continued American support for and engagement with the International Criminal Court (ICC). Although ASIL is a non-partisan organization and very rarely issues policy positions, its mission has “implicit policy values embedded in its core” she wrote, including “a belief in international law and support for the rule of law in the conduct of international relations.”

For experts like Low on international law, the dawn of the Trump era is uniquely worrying: all signs point to a stepping back by America from international treaties and tribunals. If this proves true, she asks, “what measures should take up the slack to ensure there is accountability for internationally wrongful conduct?” Her piece in the newsletter also focused in on some of the legal challenges that the US will likely face in 2017, from the refugee crisis in Syria to sanction policy and the free flow of information and ideas. American values, and the values of her organization will be put to the test harshly in the time to come. Like many other authorities in the field, Low worries that our new administration lacks the experience-- and the temperament-- to properly handle delicate issues of foreign policy and international relations.

ASIL has a long and proud history of support for international legal institutions. In 1943, the group adopted a resolution stating that, (1) “the administration of international justice requires a permanent international judicial system with obligatory jurisdiction” and that (2) “instrumentalities, agencies and procedures should be instituted and developed to declare and make effective the considerable will of the Community of Nations”. Since that time, ASIL has been involved in important work to further the US’s role in international legal systems and represents, to date, a powerful cornerstone for the international law community in the United States. ASIL is a highly respected institution on international law; their support for international legal institutions is critical and influential because of its overall position in the field. As a Special Consultant to the Economic and Social Council for the UN, ASIL works to forward international justice through the rule of law by way of advocacy work, research initiatives, education and publications.

ASIL is not the only major American legal association with a strong public stance on participation in the ICC; The American Bar Association (ABA) has an entire domain of its website dedicated to its large-scale ICC project, where it shares resources about the US relationship with the Court, and where it endorses and actively follows current events on American partnership with the Court and runs its active advocacy for the ICC. According to their website, “the project’s mission is to strengthen, regularize, and broaden U.S. engagement with the ICC.”  The ABA has been a vocal supporter of permanent international justice tribunals since 1978; they took part in the negotiations resulting in the Rome Statute (the ICC’s founding document) from 1995-1998 and were present at most important historical moments for the Court since then. (Details can be found on their website). The ABA provides support for what they call “the crucial mandate of the ICC” through advocacy and education as well as through practical legal assistance, arranging platforms for exchange of legal expertise and best practices between domestic American and ICC lawyers. In 2000, the ABA’s House of Delegates passed a resolution explicitly endorsing the ICC and recommending America’s accession to the Rome Statute. The timing of this resolution was especially important; it was released as the relationship between the US and the ICC was just developing. The resolution specifically highlighted similarities between the Rome Statute and the US Constitution and Bill of Rights. The ABA’s message was clear: the ICC’s mission is consistent with and complementary to American values.

The commitments made by these two organizations represent a major commitment by the American legal community: a commitment to grow and strengthen US ties with the ICC. These endorsements are more than symbolic, they are an extraordinary manifestation of the real, dedicated interest that Americans have in international justice. Public opinion polls regarding US participation in the ICC have rarely been more favorable than in the last few years.

Never, though, has America seen a presidential administration so openly hostile to international cooperation or with such flippant disregard for the rule of law in its political dealings. Based on the first month of the Trump presidency, it is rather difficult to imagine a scenario in which the US’ relationship with the ICC would improve substantively over the next four years: Trump has not been shy in expressing his “America first” sentiments. He openly disdains participation in multilateral organizations, especially those with the potential to exert control over United States interests.

With Trump at the helm, American values of liberty, justice and democracy will be put to the test perhaps as never before. If Trump abandons the US’s positive relationship with the Court, or threatens to, the commitment of American lawyers to the ICC will require them to take an unequivocal stand against these actions, which constitute an attack on the rule of law.

The standing up of lawyers must be part of a larger movement by civil society to exert constant and intense pressure on the Trump administration to preserve and strengthen the United States’ relationship with the International Criminal Court. Americans will not accept regression as a political platform or as policy in practice. We will not stand idly by as the degradation of justice and the rule of law on a domestic or international scale takes place in our name.  In the words of Martin Luther King Jr., injustice anywhere is a threat to justice everywhere. Americans understand that when perpetrators of mass atrocities go unpunished anywhere in the world, people everywhere in the world pay the price.
We hope that you will continue to follow AMICC for further resources and opportunities in for advocacy and support for the ICC in the US. Help us deliver a message from the American people to the US government that strengthening our bonds with the Court can only serve to further American goals and ideals. Success for the ICC is success for American values and for the American people.

Written by: Kalila Jaeger