Having It Our Way

While American policy is highlighting the divided opinions, it's not going to be the last time national hypocrisy is found. The situation in Darfur was referred to the ICC by the Security Council - one of the ways the ICC gets jurisdiction - and its clear, that just as in with the International Court of Justice, the Security Council's permanent members can shortcut the development of a consistent and authoritative international criminal law jurisprudence by picking and choosing what matters get addressed in an actual judicial proceeding.

Now, I firmly believe that the US is in violation of international law in its treatment of the detainees at Guantanamo, and that regardless of what the Administration might think, the Geneva Conventions are not merely suggestions as to how to conduct wars but a statement by the world community that certain rights are fundamentally important. But there are real problems to developing a workable system of international criminal law, and the US is highlighting the right problems for the wrong reasons: can we ever really expect states to set aside political and military options/activities for the judgment of the international community?

There is a long tradition of "do as I say, not as I do" in the international criminal law arena. Most of the criminal law the ICC has jurisdiction over is pretty well settled law: genocide, crimes against humanity, etc. But it's a pretty comprehensive list when you look at the type of military activities that might fall into those categories. The collateral damage provisions in Article 8 are pretty broad, and it's at least debatable as to whether the law on personal responsibility is settled enough that anyone should really have comfort that if their government winds up on the losing side of international opinion they won't be exposed to liability. The Rome Conference never came to consensus on the crime of aggression, and simply shelved the issue for a later date; there's still no definition in there.

The Security Council, which admittedly is not a judicial body but for practical purposes winds up being the only body which has an opportunity to address what might be criminal issues, has of course only selectively addressed state practices. I realize the ICC is focused on individual criminal responsibility, but unless there is ever going to be consensus on state practice, there is unlikely to be consensus on individual responsibility outside of specific problems that all Security Council members can agree on. I think what is changing is the international community's tolerance for balancing the need for American participation and leadership (money and troops) in UN efforts with the desire for what could be seen as the last bulwark against American unilateralism: developing a strong international legal regime to force the US to think twice about acting alone.

It seems almost impossible to expect states to ever take politics out of the equation when creating international law. I don't blame the Administration for being concerned its activities in Iraq could potentially expose it to liability but I think that we'd find most states who could have the same fingers pointed at their activities, even if they signed onto the statute, might have some new qualms. The state prosecution option is both the statute's saving grace, without which it would never have been signed, and the one thing that may ultimately shortcut any longterm credibility of the Court.