There’s been some back and forth this week between Julian Ku and David Bosco about Jeremy Rabkin’s recent critique of the ICC in the Weekly Standard. I’ll add my two cents, for to me, Rabkin’s piece seems like a ghost story told around a campfire. Rabkin intends to make the ICC seem really really scary, but he fails to convince me of the danger.
To get my pet peeve out of the way, Rabkin does what pretty much everyone on the right does when critiquing the ICC: tells a misleading version of history. He misrepresents Clinton’s stance (which was actually very similar to that of Obama), dwells on the rejectionism of the first Bush administration, leapfrogs over the second Bush administration (which supported the court without expressing a wish to join), and lands on Obama, painting the Obama administration’s stance as unprecedented and outrageous (even though it’s essentially the same as that of Clinton and second-term Bush). The Obama administration actively encourages this fiction. As Rabkin notes, legal adviser to the State Department, Harold Koh, said after the Kampala conference that the U.S. had “reset the default on the U.S. relationship with the court from hostility to positive engagement…” Rather than point out the deception, though, Rabkin buys into the fiction.
But what danger could the court pose to the U.S.? Rabkin begins his piece by suggesting the court isn’t dangerous at all because of its lack of enforcement power. He notes that the court issued an arrest warrant for Sudan’s Omar Hasan al-Bashir but has no power to actually arrest him. The actual danger, he states later, is that the idea that specific principles can be applied to determine whether uses of force are illegal could really take root in the international community. Even worse, populations of democratic countries might start to agree and demand that their leaders adhere to these principles. Rabkin notes that countries always claim that their uses of force are in self-defense. His implicit concern is that populations might force their leaders to stop lying to them.
Rabkin goes into full ghost story mode to argue that the ICC’s activation of its jurisdiction over the crime of aggression “rewrites the UN Charter.” A preventive strike against Iran, he notes, would be illegal under the ICC’s definition. Of course, he doesn’t note that such a strike is already illegal under the UN Charter. Such a strike would be “a clear violation of the Charter of the United Nations and the norms of international conduct,” as the UN Security Council said of Israel’s preventive strike against Iraq’s Osiraq reactor in 1981. Rabkin also warns that drone strikes in Pakistan would also be illegal under the ICC’s definition of aggression, again not noting that the UN has already dubbed such strikes illegal.
Rabkin looks back at history to try to convince his readers that, had the ICC existed in the past, the U.S. could have been prosecuted for all sorts of military activities it has undertaken. The U.S. could have been prosecuted for entering World War I (though this seems unlikely since Germany had repeatedly attacked U.S. ships, killing over a hundred Americans, and declared its intention to continue to do so). Or Clinton’s retaliatory strikes against Iraq in the 1990’s (again unlikely since they were justified by UN Security Council resolutions – and much less tenuously so than Bush’s Iraq invasion). Or World War II (on this I agree, and I defer to Robert McNamara).
Rabkin also argues that by supporting the court now, the U.S. will ultimately be forced to submit to its jurisdiction. Rejectionism, he asserts, will seem hypocritical to the American people. He imagines a future administration faced with this problem:
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 as I’ve argued elsewhere, this has always been the U.S.’s policy, stretching back to Nuremberg and even before. And the U.S. has thus far successfully avoided stating it in the blunt terms that Rabkin lays out. I don’t imagine this will change.