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Aggression Outlawed!

Magical thinking at the International Criminal Court.

Aug 23, 2010, Vol. 15, No. 46 • By JEREMY RABKIN
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Last November, as a new round of bombings in Baghdad raised doubts about Iraqi security measures, the New York Times reported that hundreds of Iraqi checkpoints were relying on a “small hand-held wand, with a telescopic antenna on a swivel” to check for explosives. A retired lieutenant colonel in the U.S. Air Force was quoted as saying the device was “nothing more than an explosives divining rod” which works “on the same principle as a Ouija board.” The head of the Iraqi Interior Ministry’s Directorate for Combating Explosives insisted that whether it was “magic or scientific,” the device was preferable to relying on bomb-sniffing dogs at all the 400 checkpoints in Baghdad: With all those dogs, “the city would be a zoo.”

Aggression Outlawed!

Thomas Fluharty

It is tempting to dismiss this story as a comical illustration of Third World thinking, the special penchant of less developed countries to invest technical gadgets with magical properties. But it’s not so funny when you think of the consequences. As that American lieutenant colonel pointed out, when European swindlers peddled this device as something that would “save your son or daughter on a patrol, [they] crossed an insupportable line into moral depravity.” And we still don’t know what obscure motivations may have moved the Iraqi Interior Ministry, which answers to Shia clerics, to embrace techniques so different from those of the Iraqi Army and its American trainers.

But meanwhile, Europeans have shown their own penchant for magical gadgets. The International Criminal Court is a prime example. It has been operating for eight years without securing a single conviction. In 2009, the court approved charges against Sudanese president Omar Hassan al-Bashir for complicity in mass murder in Darfur—which not only did not result in Bashir’s arrest, but also did not prevent him from being welcomed at a series of international conferences (in Africa, Turkey, and Denmark) and winning reelection this spring to a new five-year term (he has held power since a coup in 1989). But at a conference in Kampala, Uganda, earlier this summer, the parties to the ICC treaty agreed to extend the court’s existing jurisdiction—over “genocide,” “war crimes,” and “crimes against humanity”—to the new crime of “aggression.” With delegates from over 100 countries attending, the conference decided that an institution that is so far making no discernible difference has proven that it can safely be trusted with new responsibilities—at least on paper. 

The United States was not an official participant in the Kampala conference, because it has never ratified the treaty establishing the ICC. But the State Department had, on several occasions in the past few years, affirmed its desire to “cooperate” with the ICC. So Harold Koh, legal adviser to the State Department, and Stephen Rapp, the U.S. ambassador-at-large for war crimes issues, attended as observers. Weeks before the conference, Koh and his team traveled to a string of European capitals, trying to persuade our NATO allies (all of whom except Turkey are signatories to the treaty) not to expand the ICC’s jurisdiction to the new and quite undefined crime of “aggression.” At the opening of the Kampala conference, Koh was allowed to make a direct appeal to the assembled delegates. He warned them, emphatically, that adding this new jurisdiction might undermine peace and stability and respect for human rights in the world, while entangling the ICC in disputes that would also threaten its own standing. With the support of the Europeans, the Kampala conference went ahead and added “aggression” to the court’s jurisdiction anyway. 

Nonetheless, American officials expressed satisfaction with the result. Koh explained at a State Department news briefing on June 15 that “the outcome protected our vital interests.” The new jurisdiction cannot go into effect until formally blessed by a new conference in 2017. There were procedural safeguards in the Kampala amendments which “ensure total protection for our Armed Forces and other U.S. nationals going forward.” And beyond all that, since “we do not commit aggression,” Koh explained, “the chances are extremely remote that a prosecution on this crime will, at some point in the distant future, affect us negatively.”

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