Monday, June 11, 2012

AMICC Analyzes Eric Posner's Assault on the International Criminal Court (ICC) in the WSJ

In an Op-Ed published on June 10 in the Wall Street Journal, University of Chicago Law Professor Eric Posner made no secret about his disapproval of the ICC: "The court has been a failure." He also tells us that the ICC doesn't serve any country's national interest, and that the Court is distrusted and ineffectual. However, his arguments are built on shaky facts and seem to be driven more by ideology than by a careful look at the ICC's track record. Below are AMICC's responses - in bold italics - to some of the not-quite-right points (underlined by AMICC) made in Professor Posner's provocative Op-Ed.

OPINION June 10, 2012, 5:57 p.m. ET

The Absurd International Criminal Court
After 10 years and hundreds of millions of dollars, it has completed precisely one trial.

Ten years ago, on July 1, 2002, the International Criminal Court (ICC) opened its doors. The treaty that created this new body gave it jurisdiction over genocide, crimes against humanity, and other international offenses committed anywhere in the world, by anyone against anyone. Supporters argued that it would put an end to impunity for dictators and their henchmen, and usher in a new era of international justice.
In fact, the ICC's Rome Statute treaty entered into force on July 1, 2002. The first judges and officials began their work in 2003 and 2004, building from scratch a new international organization. Regarding the ICC's jurisdiction, it is not "by anyone against anyone" but rather the ICC treaty imposes specific provisions and limitation of the exercise of jurisdiction, requiring a nation to have ratified the treaty in order for the Court to be able to try alleged crimes in its territory or by its national, unless the UN Security Council refers the matter to the Court, something Professor Posner nowhere mentions.

The court has been a failure. Although it has a staff of more than 700 and an annual budget in excess of $100 million, the ICC has so far completed precisely one trial—that of Thomas Lubanga, a commander in the civil war in Congo. It took three years and ended with a conviction on March 14, 2012. The appeals have not begun. A few other trials are ongoing or set to begin.
A failure would suggest that the ICC was created as a short-term experiment that would result instantly in the end of impunity and have the effect of deterring all international crimes. Did the US court system manage to do so in the first ten years of its existence? And while the length of the Lubanga trial was not breathtakingly fast, there were new processes and rules to interpret which helped to ensure that there was in fact a fair trial. These decisions should make future trials faster.
Even by the low standards of international tribunals, this performance should raise an eyebrow. What went wrong?

As with any international organization, the court's ability to operate rests on the consent of states. One hundred and twenty-one nations have agreed to the treaty, a number that sounds impressive. But the 121 include few authoritarian countries that employ repression or conduct military operations. Mostly democracies with some semblance of the rule of law have joined. Since the ICC gains jurisdiction over a defendant only if domestic legal institutions fail to investigate international crimes in good faith, most member countries are those least likely to be subject to its jurisdiction.
Once a nation joins the ICC, it has accepted for good the Court's jurisdiction over crimes committed on its territory and by its nationals. The UN Security Council can refer cases to the ICC as well, as it did in the Darfur and Libya situations, as an alternative to this consent requirement.
Yet where the ICC has exercised its authority, its actions have been controversial. Uganda, the Democratic Republic of Congo and the Central African Republic have asked the court to investigate crimes committed by various rebel groups. In all these cases, the court has been careful not to offend governments willing to cooperate with it—but the upshot has been that it has pursued rebels only and not government officials who might be responsible for atrocities committed by the military.
The ICC's treaty requires it to investigate all sides of the conflict. In the countries mentioned, the ICC's investigations have extended to government and military officials, and they continue. The Court's accused persons from Sudan, Libya and Cote d'Ivoire are all current or immediately previous government officials.
Even when the court has acted with more independence, it has caused more harm than good. The court's involvement in Uganda's civil war in 2004 may well have helped persuade rebels to temporarily lay down their arms. But the refusal to withdraw its indictments has so far interfered with attempts to make peace with the rebels, who demand amnesty.
Joseph Kony, the cult leader of the "rebels" to whom Professor Posner refers, has shown no interest in making peace and thus refused to lay down his arms. In fact, the ICC's action helped push Kony out of Uganda, with substantial international support, and he is now being pursued by the Ugandan army with the assistance of US military advisers.
The ICC has also intervened in Kenya, on its own initiative, in the wake of violence that accompanied elections in 2007. Criminal investigations of top-level Kenyan politicians, conducted at a snail's pace, have inflamed tensions in that country but without producing a resolution.

The ICC's investigation in Kenya, while not formally referred by the government, was initially invited by the Kenyan government. The pace of the investigation was relatively quick, resulting in arrest warrants in approximately one year and another for approval for trial. The ICC's purpose is to do justice, not to "produce a solution," and many experts recognize that justice needs to be done in order to ensure a lasting peace.
The ICC indictment of Sudanese President Omar al-Bashir in 2009 did nothing to bring peace to that country. Other African countries continue to welcome him to their capitals in violation of their treaty obligations.
It was the UN Security Council, not the ICC, which initially determined that the ICC should act in the Darfur situation by referring it to the ICC in March 2005. (The Security Council also referred the Libya situation to the ICC, by consensus, in February 2011.) The US consented to both referrals. And while some African nations have welcomed President Bashir, others - including Kenya and Malawi - have recently refused, joining a growing group of ICC States Parties in Africa who have come to carry out their ICC treaty obligations.
The court also indicted Moammar Gadhafi, whom Libyan forces murdered, and his son Saif Gadhafi, who is being held by one of the many rebel factions in that unhappy country. An impasse has arisen because Libyans have no desire to yield Saif Gadhafi to the comforts of a Dutch jail and would much prefer to execute him. (The ICC cannot impose the death penalty.)

Meanwhile, African countries accuse the ICC of bias against Africans, as it has never indicted people from any other continent. And few countries have shown much inclination to capture indicted suspects and hand them over to the court.
More precisely, the African Union - whose membership includes dictators and other leaders of countries that have not joined the ICC - has tried to build a case of anti-Africa bias. Those African countries that have joined the ICC, however, have welcomed the Court's work. And according to the Court's investigations, Africa is where many atrocities are happening. As a judicial institution, it cannot and should not indict individuals from other continents for the sake of political expediency.
Why does the International Criminal Court have such difficulty? Unlike a national court, the ICC must constantly convince governments to support it while at the same time avoiding the impression that it is a tool of governments. For all the talk of the "global rule of law," this is an intensely political process and essentially contradictory.
Not quite. The ICC does indeed rely on the cooperation of its States Parties. These governments have joined the ICC and obligated themselves to cooperate with the Court. It is more a matter of ensuring that these countries meet their obligations.
The court focuses on Africa because African countries are weak. It operates with incredible slowness because it needs to give the impression to suspicious audiences that it is fair. But because it moves so slowly, it cannot react in a timely manner to fast-changing international events—and it does little to deter dictators, whose life expectancies tend to be short in any event. The upshot is that the court is both distrusted and ineffectual.
No, the ICC focuses on Africa because that is where many of the worst atrocity crimes are occurring and these same countries - and the UN Security Council - recognize that justice should be done. It is slower than it should be, primarily because it is a new court testing its rules and procedures for the first time. Next, its task is to do justice, not to "react in a timely manner to fast-changing international events." No, perhaps Robert Mugabe (who has been in office for over three decades) won't be deterred by the ICC - but how do we know if the next dictator won't be if we write off the ICC after the completion of only one trial? Yes, it clear that Professor Posner doesn't trust the ICC and finds it ineffectual. But the US government - under both Democratic and Republican administrations - have made clear in statements and UN Security Council votes that the ICC serves US national interests, even if it does not wish to join the Court.
The United States was heavily criticized in 2002, when President Bush "unsigned" the treaty that President Clinton had signed near the end of his term. There were concrete reasons based on national interest to withdraw, however: For example, the U.S. could not prevent the court from targeting its citizens, including soldiers and officials.
The US sending a note to the UN Secretary-General stating that the US did not intend to ratify the ICC treaty (the signature is "suspended" but still there) made no difference for the Court's ability to take action against American nationals. Some may argue that distancing itself from the ICC made it harder for the US to assert its interests there. Regardless of whether it joins the ICC, the US always has the right to investigate and try its own nationals for atrocity crimes in US courts. Period.
Now, with the benefit of hindsight, it is clear that the ICC will serve no country's interests, let alone international justice, whatever that might mean. It is too weak to deter atrocities, end impunity or keep the peace, but it is strong enough to serve as an irritant to international relations.
The US government and the majority of the American public disagree with you, Professor Posner.
Mr. Posner, a professor at the University of Chicago Law School, is the author of "The Perils of Global Legalism" (University of Chicago Press, 2009).

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