Magical thinking at the International Criminal Court.
Aug 23, 2010, Vol. 15, No. 46 • By JEREMY RABKIN
You can see the problem if you think about the Nuremberg precedent. Prosecuting Nazi leaders for “conspiracy to commit aggression” was the most controversial aspect of the Nuremberg proceedings, not only because it had no precedent in international law but also because “aggression” was so hard to define in generally applicable terms. Almost all governments, in almost all wars, claim to be using force in self-defense—as, in fact, Germany claimed to be doing when it invaded Poland in 1939 (in response, it said, to a Polish attack on a German broadcasting station near the border with Poland).
It was easy to dismiss all such claims by Germany as blatant pretexts, given Hitler’s open call for European conquest in his prewar writings. But would it have been “aggression” for Britain and France to have deployed military force to resist Germany’s remilitarization of the Rhineland in 1936 or its annexation of Austria in 1938—actions that were in violation of the Treaty of Versailles but were implemented without violence? Once war was declared, was it lawful for Britain to invade neutral Norway in 1940, as it did, to preempt a threatened German invasion there? Was it lawful in 1942 for the United States to seize control of Morocco and Algeria, colonial possessions of neutral France, which had not attacked the United States? All these awkward questions—and much more awkward ones posed by Stalin’s invasion of eastern Poland and Finland in 1939 and the Baltic states the following year—were evaded at Nuremberg by an agreement to limit the tribunal’s jurisdiction to “Axis” war crimes.
If one looked only a bit further back, though, the issue might seem even more clouded. Woodrow Wilson had urged American entry into war in 1917 not because Germany was directly attacking the United States but because it was using submarines against neutral shipping to enforce its attempted blockade of Britain. Essentially the same principle—freedom of the seas—had been invoked by President Madison in urging war with Britain in 1812. The young Abraham Lincoln was among those who doubted that the United States was justified in invading Mexico in 1846 over what was essentially a boundary dispute. That war ended not with mere clarification of the Texas border but with vast territorial acquisitions, extracted by the United States from Mexico in the ultimate peace treaty.
The world wars of the twentieth century also ended with vast territorial adjustments at the expense of the defeated states. Was it right to continue these wars until these results could be achieved, rather than accept a compromise peace with aggressors? Quite a few serious people questioned Allied war policies at the time, and more questions were raised in reaction to subsequent events. When resort to war is proper—and when war can rightly be continued—has been the central question in international politics for many centuries.
A power that could say definitively which side was in the wrong (or apportion blame between the contending sides) would be the ultimate arbiter of international justice. The U.N. Charter might seem to confer that authority on the Security Council, specifying that the council has “primary responsibility for the maintenance of international peace and security” (Article 24) and authorizing it for this purpose to “determine the existence of any threat to the peace, breach of the peace or act of aggression” (Article 39). The charter contemplates that the Security Council may impose various economic sanctions and ultimately “take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security” (Article 41, 42)—without limiting these powers to repelling actual, full-scale invasions. The charter thus seems to endorse the traditional view that recourse to force may be justified in international affairs, even in response to less immediate threats than a full-scale invasion.
But this role for the Security Council was hedged by the provision requiring council resolutions to be accepted by each one of its five permanent members (the United States, the United Kingdom, France, Russia, and China—the great powers, as they were supposed to be in 1945). In most conflicts since 1945, this great-power veto has left the council incapable of decisive action. The charter does recognize an alternative: “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security” (Article 51). Many commentators interpret that language to mean that force can be lawfully deployed only when authorized by the Security Council or in response to actual invasion.
This view supposes that resort to force may be appropriate in many circumstances with council approval—but, barring full-scale invasion, not necessary at all if the council does not agree. The actual practice of states since 1945 suggests that most governments find this strategic constraint too dangerous to accept. The United States has certainly followed a different understanding. Whatever justifications might be offered for President Kennedy’s blockade of Cuba in the 1962 missile crisis, President Reagan’s interventions in Central America and Grenada in the 1980s, or President Clinton’s bombing of Serbia in 1999 (or, of course, President Bush’s invasion of Iraq in 2003), none of these actions could be described as intended to repel an “armed attack” against the United States that was already underway.
In wartime planning discussions, officials in the Roose-velt administration weighed the idea that a postwar peace organization should require states to submit all their disputes to arbitration in a new international court or stand accused of aggression if they resorted to force without the court’s endorsement of their claims. They rejected the idea as impractical. The alternative ultimately adopted in the U.N. Charter—giving the Security Council “primary responsibility” for resolving “threats to the peace”—rested on the assumption that no peace could be reliably enforced without the cooperation of the great powers, and getting their agreement would not always be helped by an overly precise allocation of past rights and wrongs in a particular dispute.
To now give the International Criminal Court jurisdiction to punish “aggression” might seem a return to the sort of legalism rejected in 1945. But, in fact, it carries the reliance on legalism still further. The U.N. Charter did create an International Court of Justice (often called the “world court”) but empowered it only to issue rather general findings on matters in dispute between actual states, leaving ultimate remedies to be negotiated between the states involved. The International Criminal Court created by the Rome treaty, operating since July 1, 2002, and based, like the ICJ, in the Hague, is supposed to decide which specific officials should be punished, and with what degree of severity, for their own decisions.
The whole project supposes that, where the great powers cannot agree in negotiations at the Security Council, a group of isolated judges can, all by themselves, determine the rights and wrongs of particular international conflicts with the same confidence as a domestic criminal court judging ordinary personal crimes. But domestic prosecutors have a well-developed body of criminal law to apply—not to mention police forces to assure that controversial verdicts do not threaten the peace. There has never been a standing body of criminal law for the uniquely international crime of “aggression.” The amendments to the ICC statute agreed at Kampala this summer are supposed to fill that void, but they actually make the challenge for the ICC more dizzying.
To start with, the Kampala amendments spell out the scope of this new crime, in pedantic detail, extending the term “aggression” to cover not only invasion by fully equipped armies, but airstrikes, naval blockades, surgical commando raids, even the temporary occupation of a limited area during an evacuation of foreign nationals. So charges of “aggression” could be filed against officials who approved a limited reprisal raid or demonstration attack—of the sort that, for example, President Clinton regularly made against Iraq in the 1990s to punish Saddam’s defaulting on obligations to cooperate with weapons inspections.
Even more remarkably, the definition does not specify any valid justifications for the use of force but simply repeats that force must always be consistent with the limitations imposed by the U.N. Charter. If the court interprets the charter as most academics do—to prohibit all use of force except to repel an actual “armed attack”—then Israel’s airstrikes on nuclear production facilities in Iraq in 1981 and in Syria in 2007 were acts of “aggression,” as are current U.S. missile strikes on terror bases in Pakistan. The Kampala amendments make no provision for humanitarian intervention, either. Even a very limited incursion of armed troops in a rescue operation—like the Israeli commando raid at Uganda’s Entebbe airport in 1976 to rescue passengers held hostage there—could therefore be charged as an act of criminal “aggression.”
But for all the sweep of the new jurisdiction, it contains a very notable omission. By its terms, only those who “direct the political or military action of a state” can be guilty of “aggression”—that is, the definition does not apply to leaders of terrorist organizations like al Qaeda or the Taliban or Hezbollah. The Kampala amendments do specify that “aggression” encompasses the sending of “armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State”—but only when the “sending” is “by or on behalf of a State.” If Syria hosts terrorist groups plotting aggression against Iraq or Israel, then, its leaders can escape liability by insisting that these groups were not directed “by or on behalf” of the Syrian government in their actual attacks.
Thus, the Kampala amendments immunize governments that harbor and cooperate with terrorist networks, so long as they don’t exercise overly direct control of their operations—while officials in countries attacked by terrorists risk being charged with “aggression” for retaliating against terror bases in other countries. This asymmetry cannot be attributed to inadvertent drafting error. The Kampala amendments were, as the official text acknowledges, adopted “in accordance with” a U.N. General Assembly resolution of 1974. Indeed, they track precisely the language of that resolution.
The U.N. General Assembly took every opportunity in the 1970s to express support for the “just struggles” of guerrilla forces attacking South Africa and the Portuguese colonies in Angola and Mozambique—and for the Palestinian terror networks attacking Israel. So the 1974 resolution ends with the stipulation that nothing in its definition of “aggression . . . could in any way prejudice the right [of] . . . peoples under colonial and racist regimes or other forms of alien domination . . . to struggle [‘for self-determination, freedom and independence’] and to seek and receive support.” Having licensed “struggle” against “racist regimes,” the General Assembly underscored the point the following year by adopting a resolution that defined “Zionism” as “a form of racism.” A few years later, it endorsed a Law of the Sea Treaty that defined “piracy” in a way that excluded ideologically based terror groups from the sorts of force authorized against mere “pirates” attacking shipping for “private ends.”
It’s easy to see why governments sympathetic to terrorism would today welcome a definition of “aggression” that works so well for them. Why does this meet with the approval of the Obama administration?
Safeguards that Won’t Save
The Obama administration has tried to downplay the outcome of the Kampala conference, and even advocates for the ICC insist the new provisions won’t make much difference in practice. It won’t go into effect for seven years, after all, and it is hedged with safeguards.
On substance, the advocates note that the definition implicitly excludes marginal or ambiguous cases by limiting “aggression” to an act which “by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” But these terms have no clear meaning, as the U.S. representative, Ambassador-at-large Rapp, warned at the outset of the Kampala conference. The definition specifically incorporates many actions that, in terms of “gravity” and “scale,” might seem rather minor compared with full-scale invasion. If it were clear what sorts of acts were “manifest” violations of the U.N. Charter, the conference could have offered a list of extenuating circumstances to distinguish allowable (or ambiguous) measures from “manifest” violations. The failure to offer any such clarification indicates that there is no agreement on what circumstances might distinguish limited interventions or defensible measures from “manifest” aggression.
What the conference did instead was offer amendments to the regulations defining procedural standards for the court (so-called “Elements of Crimes”). These amendments specify that the “term ‘manifest’ is an objective qualification”—that is, not a matter of subjective intent on the part of the alleged perpetrator. Another amendment specifies that the ICC prosecutor need not “prove that the perpetrator made a legal evaluation as to the ‘manifest’ nature of the violation of the [U.N.] Charter.” In other words, good faith reliance on a seemingly plausible legal theory is no defense to the charge of “aggression”: That crime will be defined as the judges at the ICC deem appropriate—by whatever criteria they prefer.
The assumption on the part of ICC advocates in Europe is that the court will exercise prudent discretion before wading into controversial disputes. But why suppose that? Western countries decided not to fight over the 1974 U.N. General Assembly resolution, so it was adopted by consensus. Such resolutions were not binding—what did it matter? A decade later, the International Court of Justice decided to accept Nicaragua’s suit against the United States for various acts aimed at resisting Nicaragua’s support for guerrilla forces in Guatemala and El Salvador. The United States protested, among other things, that the ICJ was usurping authority reserved to the Security Council and ignoring the U.S. reservation against submitting disputes to the world court on claims grounded in multilateral treaties. The ICJ brushed past all these objections, holding that provisions of the U.N. Charter and the Geneva Conventions were now customary law—and that the 1974 General Assembly resolution had also established a customary law principle that states may not invoke the right of “self-defense” against nonstate actors based in foreign countries.
The Reagan administration was so provoked that it withdrew the long-standing American consent to have claims against the United States presented to the International Court of Justice. But the ICJ was not much chastened. In 2003, when the General Assembly asked it to rule on the “wall in Palestine” (that is, the barrier Israel had constructed to thwart attacks by suicide bombers), not only the United States but also the European Union, Russia, India, and a half dozen other states urged the ICJ not to intervene in the midst of ongoing peace negotiations between Israel and its neighbors. The court ignored these pleas to deliver the rebuke that the majority in the General Assembly was so eager to have on record. In condemning Israel’s “wall” against suicide bombers, the court again invoked the 1974 U.N. resolution to support its claim that the right of “self-defense” does not extend to attacks by nonstate actors.
Why is it, exactly, that we think the International Criminal Court will be more restrained than its companion institution in the Hague, the International Court of Justice? The judges of the ICC are elected by member states of the ICC—a gathering in which Third World countries are now also the majority. Why won’t the ICC have the same incentives to play to the gallery of the “nonaligned,” the unserious, and the malevolent? Not to worry! The fine points of legal reasoning won’t matter, say defenders, because the Kampala amendments allow parties to the ICC treaty to opt out of the court’s new jurisdiction, and even if the United States should some day join the ICC, it simply won’t consent to the court’s jurisdiction over aggression (nor would Israel or other states which fear they will need to use force in self-defense). But will our NATO allies, all but Turkey already full participants in the ICC’s other activities, decide to opt out of the court’s jurisdiction over aggression?
At Kampala, despite American pleas, European states were unwilling to resist calls for expanding ICC jurisdiction in principle. Will they have recovered enough confidence by 2017 to say, “We have supported the principle—but we never meant to let it apply to us”? Most EU states don’t have the military capacity to mount any sort of military operations outside their own borders, anyway, so they may find it quite tempting to claim that no one should act without Security Council endorsement. Given Europe’s commitment to a “common foreign and security policy,” will Britain and France really have the backbone to resist a common EU move to embrace the aggression amendments? Is public opinion in these countries really so committed to retaining legal immunity for the participants in another war like that in Iraq?
Meanwhile, reliance on the opt-out misses the larger picture. At the same time that the Kampala amendments authorized states to exempt themselves from the ICC’s new jurisdiction, they also authorized the Security Council to impose this new jurisdiction on any state, including states that have not agreed to previous areas of ICC jurisdiction. So the next time there is an uproar over something like the attack on the Gaza flotilla, the Security Council can instruct the ICC to investigate. The council won’t even have to say the disputed action did, in its considered view, constitute “aggression.” It can (under the terms of the Kampala amendments) simply recognize that there is controversy about whether force was justifiable and hand off the matter to the supposedly nonpolitical legal processes of the ICC—as we in America hand off controversial disputes to independent prosecutors.
Is it certain that a future U.S. administration would not find this a convenient way to deal with an international controversy with which it did not want to become too involved? As it is, the Obama administration gave ambiguous signals on whether it would support a new U.N. “investigation” of the Gaza flotilla incident. And what about American actions that provoke condemnations at the U.N.? Would an American president really find it so easy to veto a Security Council resolution referring the matter to the ICC? After all, the ICC prosecutor would, at the outset, only be “investigating” all the disputed circumstances, and other permanent members of the council (at least France and Britain) might already have agreed to subject themselves to such “investigations.” To hold the line on American immunity, the president would have to say, “Yes, we’ve been saying since the days of Secretary Clinton that ‘we support the ICC,’ but we didn’t mean we would put our own people at risk. We only ‘support’ investigations of others.”
But still, says the State Department, the consequences of the Kampala conference will be contained. Along with changes to the ICC statute, the conference endorsed a set of “understandings” of what they mean, including a stipulation that the new definition of aggression is not evidence of customary law. So, say our officials, the effect of the Kampala amendments will be limited. But the United States insisted in 1945 that the Statute of the International Court of Justice have a similar provision, holding that its decisions would be binding only on parties to the immediate case and the ICJ’s rulings would not be a source of law justifying future decisions. The United States also took care to have the U.N. Charter stipulate that only decisions of the Security Council—where Washington retained a veto on substantive resolutions—would be “binding,” while resolutions of the General Assembly would simply be “recommendations.” The actual practice of the International Court of Justice shows how futile such lawyerly stipulations are when determined judges set out to impress the world with the majesty of international law.
Harold Koh warned at the outset of the Kampala conference that “as yet no authoritative definition of aggression exists under customary international law.” Adopting an ambiguous or open-ended definition at the conference might encourage “unjustified domestic prosecutions,” as countries assert “universal jurisdiction” (by which any state may choose to exercise criminal jurisdiction, even if the crime had no connection with its own territory or its own nationals) to punish the poorly defined crime of aggression by officials of other states. Under the circumstances, he warned, such prosecutions would be “highly unlikely to promote peace and stability.”
And now? Language in the Kampala “understandings” stipulating that the new definition does not, in itself, establish customary law does not establish much at all. Even if the new language in the ICC statute is not “evidence of customary law,” its ratification by any sizable number of states could readily be taken as evidence of state practice. If the world agrees—more or less—that perpetrators of aggression should be punished, why shouldn’t the nations most committed to international law take it upon themselves to pursue prosecutions in their own courts against aggressors who have opted out of the ICC’s jurisdiction? The preamble to the ICC statute asserts that “it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes.”
That admonition seems to have encouraged European states to attempt to prosecute former Chilean president Augusto Pinochet in the late 1990s—and attempt prosecutions of American and Israeli officials in the years since—on the theory that the worst international crimes fall under “universal jurisdiction.” Nothing in the Kampala amendments disavows the exercise of such jurisdiction for the crime of aggression.
The least one can say is that the outcome in Kampala will reinforce trends in international law that would constrain future U.S. foreign and security policy. Does that really not matter?
Why International Law Matters
It is telling that defenders of the Kampala amendments stress the procedural safeguards which, they say, will protect Americans from prosecution. It is as if the court’s authority were already an established fact and the challenge now is to have our defense lawyers find the most promising loopholes. But that is conceding the main point at issue. The court has no power to make arrests or compel governments to hand over documents and witnesses. It depends on the cooperation of governments, yet it has no power to punish governments that fail to cooperate. In practice, the court’s effectiveness must depend on its moral authority.
That is so, not only when it comes to cajoling cooperation from governments in particular proceedings, but also in larger terms. Even defenders of the court acknowledge that it is only a supplement to enforcement by governments, that it will never have the capacity to mount more than a few trials each year—across the whole range of its enforcement responsibilities. And when it comes down to it, the United States asks hundreds of thousands of soldiers, sailors, flight crews, and intelligence agents to risk life and limb to defend our country. We can certainly tell high officials that they must accept, as part of the burden of office, the very slight risk that they may be threatened with some sort of legal proceeding before international jurists in the Hague. The issue is not the safety of American officials but their confidence and effectiveness in a world that looks to more or less anonymous officials in the Hague for moral guidance. The ICC is all about relocating moral authority in the world.
The idea that Islamist terror networks would be deterred by the International Criminal Court was always absurd, as was the idea of the ICC deterring states which harbor or cooperate with terrorists. So it was, apart from other considerations, almost logical for the Kampala conference to exempt nonstate “armed bands” and the states that host them from the court’s new jurisdiction. But even when the jurisdiction might apply, as with a direct attack by one state on its neighbor, the ICC won’t affect a tyrant’s calculations. North Korea and other rogue states have not consented to the ICC’s jurisdiction.
Where the threat of ICC prosecution will matter is in democratic countries or countries that depend on assistance from democratic countries. As our experience in the past decade shows, people in democracies have come to regard military action of almost any kind as inherently questionable. Almost any use of force can be challenged as disproportionate or premature or counterproductive. Legitimate experts are always available to reinforce such arguments, and opportunistic politicians are usually quite ready to provide them a platform, especially if military action drags on or encounters difficulties. Almost every major American action since World War II has been dogged by skeptical challenges, often enhanced by conspiracy theories about the “true” motivation for the intervention.
But in the past, American administrations did not seriously contend with the claim that resort to force would be “contrary to established international law.” With all the rage and rancor provoked by the Vietnam war in its last years, no one wasted much time arguing about legal issues. These were understood by almost everyone as inherently disputable and so not really to be settled by citations of legal authority.
The advent of the International Criminal Court ratifies a new expectation that military policy can, indeed, be settled by lawyers. So whether the ICC actually does try to prosecute an American is almost beside the point. The rage of legal scholars against John Yoo and others in the Bush Justice Department reflected a remarkable degree of acceptance for a new assumption: Even in the midst of war, questions about detention and interrogation policy have clear and determinate answers, quite apart from what commanders on foreign battlefields may think necessary. It did not seem to matter that there were hardly any American judicial precedents to guide the Bush Justice Department. It did not even matter that most foreign precedents were not clearly at odds with the policies finally adopted. The “law” was something to be settled by the consensus of law professors at prestigious universities.
Consider the Obama administration’s continuing promise to close the Guantánamo detention center. Since the Supreme Court rulings in Bush’s second term extended habeas corpus to Guantánamo detainees, there is no legal distinction whatever between holding the remaining detainees in Cuba and transferring them to maximum security prisons in Illinois or Colorado. Still, the idea has taken root that Guantánamo is an affront to “international law,” so it is too late now to offer even legal arguments in response. And that has happened without an authoritative pronouncement from any international tribunal, but merely in response to expressions of opinion by the International Red Cross, the European Parliament, and various other bystanders, denouncing Guantánamo as a “law-free zone.”
We may, in fact, get the worst of both worlds by expanding the ICC’s jurisdiction in principle while limiting its reach in practice. A string of controversial decisions that were openly scorned by much of the world would dent the court’s authority. But even standing on the sidelines, the ICC encourages the idea that there really is a definite legal standard for aggression—as for all the minutest tactical operations within war—without endangering this inspiring thought by associating it with controversial conclusions in particular cases.
The interest of the United States is in ensuring that it retains the sovereign right to make its own decisions. And as our military capacity gives us a wider range of potential options to choose from—and a much wider range of allies and partners who depend on our choices—we have special incentives to make sure that no international institution supplants our authority. But that is precisely what the ICC symbolizes. The world has grown impatient with political deliberations in the U.N. Security Council, where the great-power veto forces interminable negotiations. What the ICC promises—or holds out as an ideal—is an alluring middle way between leaving ultimate decisions to sovereign states and establishing a world government to enforce the will of the global majority (or some well-placed global oligarchy?). Instead, we can just have rules, adumbrated and applied by legal experts in the Hague.
This is, in truth, as childish as the Iraqi reliance on those explosive-detection wands to avoid the unpleasantness of bomb-sniffing dogs. Much of the world wants to believe that a court can settle the question of “aggression” by legal logic. Then it won’t be necessary to take sides or even take serious steps to deal with actual threats.
What happened this summer was that the Obama administration decided it was easier not to disrupt this pleasant fantasy than to meet its responsibility to protect those who carry out the national security policies of the United States. Instead, the United States showed the world that it has rejoined the “international consensus” so rudely disrupted by the Bush administration. It will be years before we have to say we don’t actually share the premises of this latest dream of “peace through law.” And by then—we’ll have balanced the budget and gotten our debt under control, so we’ll be better able to confront this external challenge.
The problem is that, in the absence of a world legislature, advocates of international law tend to treat silence as consent (and they treat incoherent mumbling as equivalent to silence). That is how “consensus” leading to new “customary international law” gets established. A new “consensus” gained a lot of momentum at Kampala without any serious opposition from the United States. The world took another large step toward isolating and stigmatizing the American understanding of the “inherent right of self-defense.”
It will be important, in the next few years, to put the world on notice that we don’t, in fact, mean to go along with the subsequent stages of the project that the ICC represents. But we can’t now rely on the Obama administration to stand up for our sovereign rights. Time for others—especially in Congress—to start doing so before it’s too late to say, “We didn’t really mean it.”
Jeremy Rabkin teaches public international law and the law of armed conflict at George Mason University Law School.
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