Legal Commentary

Contracting Around the Security Council, and the International Criminal Court Review Conference

By Kenneth Anderson

The United States did not join the International Criminal Court, despite Bill Clinton?s 11th hour signature (followed by the Bush administration?s controversial 1st hour ?de-signing?).  The ICC now reaches the moment, as is usual in treaties of this kind, to convene a ten year review conference, with an eye to making changes and seeing how things have gone until now.  The US under the Obama administration has indicated that although, as Secretary of State Clinton said in a recent speech, that it would be a long time before the US joined the ICC, there were ways in which it could get closer to it.

These ways apparently include attending the ICC review conference as an ?observer? (a status that in this kind of diplomatic conferences, would give the US the ability to make statements and diplomatic interventions).   As we get closer to the review conference on the ICC, many international law experts have been watching and sometimes commenting on, ways in which the US might or might not ?engage? with the conference and, more broadly, ?engage? with the ICC.  Brookings scholar (and now ambassador to Poland) Lee Feinstein and the Hoover Institution?s Tod Lindberg recently came out with a well-regarded Brookings Press book on the subject, and the American Society of International Law has done a report; others, such as the Council on Foreign Relations, are poised to weigh in.

The primary issue on the table for the conference is the crime of aggression ? an attempt to define it and incorporate it into the ICC statute.  This has seemed an entirely natural move to some.  (Nuremberg, after all, not only dealt with the crime of aggression, in its own architects? views, it was the central matter, and the things for which Nuremberg is principally celebrated today ? war crimes, crimes against humanity, genocide ? were seen by the Americans particularly as lesser issues, left to the primary national victims of these crimes to prosecute at Nuremberg.)

Others have found the link-up altogether unnatural.  These objections can come from an awareness of the profound moral and legal gulf traditionally maintained between the lawfulness of the resort to war and the lawfulness of how a war, lawful or not, is conducted by each party?s forces.  Objections can also come from an awareness that these matters cannot be de-politicized and judicialized ? Paul Kennedy?s history of the United Nations, The Parliament of Man (upon which, true, I have heaped many criticisms), is nonetheless extremely persuasive that the most important achievement of the 1945 UN over the League of Nations was the recognition that the League had been far too idealistic, and that like it or not, the Great Powers needed their own chamber: questions of the use of force would be determined by political decision and it was crucial, even at the risk of nasty realpolitik, that they be kept inside the tent rather than without.

My own view lies with the skeptics, on both counts, and so I see this whole effort both to define aggression as an act and a crime as a mistake.  In this regard, I yield pride of place to Tufts professor Michael Glennon, who  lays out the argument against in his fine new Yale International Law Journal article, The Blank Prose Crime of Aggression.  

As I remark at the end of this post, however, whatever one?s prescriptive views, descriptively the effort appears to raise questions about ?contracting around? the Security Council in a changing world but un-amendable UN.  I am no fan of the ICC, to be sure,  a student but not an enthusiast of the UN, and only a luke-warm fan of the Security Council.  On the other hand, occasionally someone not part of the church can see problems not visible to believers, and it sure looks to me that even from the standpoint of those convinced about these institutions, this is the kind of bridge too far that, in my estimation, is likely to do damage to both the ICC and the Security Council.

That is approximately Professor Glennon?s conclusion though he is as ever much more measured than I, and I recommend his article strongly, particularly to US diplomats trying to figure out what to do.  My view of the review conference is simple.  Given that aggression is the primary review conference item, and further given that there is no way the US could actually go along with the ICC as a venue for making such determinations, irrespective of Security Council ?triggers? and all that, this is one of those areas in which the Obama administration?s ?always-engage? UN diplomacy is a mistake.  The US cannot really ?negotiate? even as an ?observer? because at the end of the day it will not go along.  Yet showing up to ?negotiate? even under the rubric of ?observation? is as though to say it can.  Things predictably end, if not in this case in tears, then at least irritation, and accusation ? not undeserved ? of US bad faith, on the quite reasonable view that the US showed up for the PR benefits even though it couldn?t do anything real and knew in advance that it couldn?t do anything real.

So, in my estimation, everyone would be better off if the US expressed its views on why this, even if attempting to judicialize an inherently political process were a good idea, is in any case a bridge too far ? in a polite, detailed, serious letter to the review conference and left it at that.  That, in my purely speculative estimation, is the private view of leading states at the ICC review conference and, I would also speculatively guess, human rights NGOs who recognize that, although they have lashed themselves to the ICC-mast of the internationalist ship and have publicly committed themselves to IO human rights processes no matter what, somewhere deep in their hearts they would actually prefer not to go down with the ship and carry important parts of the substantive human rights agenda with it, as these various international organs perhaps head into serious, institution-weakening conflicts of legitimacy and jurisdiction.

Let me go beyond prescription to a descriptive point, however.  One of the questions raised by the crime of aggression discussions among a group of states formed as a treaty-club is whether, and to what extent, the whole effort is a mechanism for ?contracting around? the Security Council.  Or, more precisely, contracting around the legitimacy of the Security Council.  Ostensibly an exercise in private voluntary ordering ? but simultaneously presenting a serious challenge, at least potentially, to the public regulatory ordering of the Security Council and its authority.  As speculation, I?d suggest that this kind of private ordering challenge represents one of several emerging efforts by which real conditions in the world, such as the rise of the BRICs and the inability of the UN generally, and the Security Council in particular, to reform itself internally to adjust to a changing world.  The public order of the Security Council seems both outdated but also unamendable; new private forms contract around it in venues such as the ICC.

It is all more complicated than that, of course, because the ICC purports to carefully interlink with the Security Council in important ways.  But when it comes to defining aggression, then the private ordering process that was in an important way always seeking to alter the public process looks headed for many more conflicts of interest.  That is, of course, unless it confines itself to a particular subclass of civil wars in geopolitically not so important places in Africa where, frankly, no one much cares outside the region.

Partly this might be accounted for by the rise of a multipolar world, but that is not all of it.  When we say a multipolar world, at this point, after all, what we mean at bottom is the rise of China, and China is already a member of the Platinum Club of the P5.  China is perhaps not opposed to a reform of the Security Council that left it untouched but perhaps incorporated some of the BRICS ? Brazil, for example ? although why it would want some special status for India on the Council is not evident from a geopolitical standpoint.  In some ways, China is served by a Security Council P5 dominated by European states on the way down in the world.  But the contracting around question is not just a matter of geopolitics ? general legitimacy issues that go to the UN, and things not captured necessarily by narrow declarations of state interest matter too.  (David Pilling has a very good piece in the FT, Thursday, January 28, 2009, ?China will not be the world?s deputy sheriff,? on the question of how China sees its role in international order and the provision of public goods in international order, behind sub wall.)

Full post as published by The Volokh Conspiracy on January 29, 2010 (boomark / email).