The David Bosco v. Julian Ku Debate on the ICC, and I’m disagreeing with both

The International Criminal Court, photo from the Coalition for the ICC's website

Not that I want to do another blog review so soon, but a recent exchange between Opinio Juris‘ Julian Ku and Foreign Policy The Multilateralist‘s David Bosco on the International Criminal Court has caught my attention. It’s an interesting exchange between someone with a very American and conservative view on the ICC (Julian Ku), and another who’s closer to the center and apparently slightly more favorable – or perhaps “less unfavorable” being a more appropriate expression – to the Court (David Bosco).

You would probably think that I’d take Bosco’s side on this debate, and I wish I were, but – at the risk of not making many friends – I’m going to take neither.

My opposition to Julian Ku is clear, and is one I’m comfortable with. From what I’ve been reading, Julian Ku belongs to the American school of thought that considers the ICC to be a threat to American interests, that the adoption by the Assembly of States Parties at Kampala in June of a definition (PDF) for the Crime of Aggression (Article 5(1)(d) of the Rome Statute – PDF) is a failure for US diplomacy, and that US cooperation with the ICC will lead to nowhere.

As I’ve explained in the comments section of one of his recent post, I qualify that position as “Hobbesian.” Here’s an excerpt of what I wrote:

What I find interesting in Julian Ku’s post, and the comments made by Brett Schaefer and Jeremy Rabkin’s concerning Kampala, is that the United States’ Hobbesian vision of international law is still alive and kicking.

For those who are not familiar with this concept, the Hobbesian approach considers that international law is there to protect a State’s interests from other, potentially hostile States, and nothing more. It is often opposed to the “Lockean” vision of international law, according to which international law is there not only to protect States’ interests, but also to promote cooperation, and ideally integration of the different Nations. A very much more European idea and ideal.

I recently wrote an essay on the United States’ Hobbesian approach to the ICC from the negotiating of the Rome Statute to 2005, when the US let the Security Council refer to the ICC the situation in Darfur. I’m happy to learn that there’s plenty of potential for me to write a follow-up in the coming years.

Needless to say, as a European and a passionate international law student, I’m very Lockean in my conception of international law. Julian Ku and I (not that I want to put myself on the same level of an esteemed academic and University professor) are on opposite sides of the spectrum on the ICC.

More frustrating for me is David Bosco’s position. As I mentioned before, David Bosco is more moderate in his approach to the ICC. He hasn’t expressed himself very clearly on this issue, but I even suspect him to be rather favourable to this institution. But from what I read, he belongs to a rather realist school of thought. I’m not averse to realism – even though I’m a staunch supporter of international criminal justice and efforts to put an end to the impunity gap regarding mass atrocities, I have no trouble recognizing the political realities of the international system and the necessary impact it has on international law in general, and international criminal law in particular.

I had already expressed in my previous post certain reserves about David Bosco’s arguments regarding the ICC’s “troubles” in Africa and the growing necessity for the Court to look for a “non-African to indict” (his words). But I was perfectly happy with his piece criticizing the positions supported by Julian Ku. Julian Ku answered David Bosco’s position in another post. Here’s an excerpt:

Although I am not totally convinced by it, I think Bosco offers the best possible defense of the ICC that would be persuasive to U.S. policymakers.  In a nutshell, he agrees with Rabkin (and many others), that the ICC effort to define aggression is a “dead end” and that it would ultimately favor non-state actors and terrorist organizations.  But he offers a measured defense of the ICC against Rabkin’s broader attacks. In essence, he seems to be saying that aggression is not much of a problem for the U.S. since it is staying out of the ICC and has successfully limited the jurisdictional scope of the ICC over aggression crimes.  Second, he points out that the ICC (contrary to Rabkin’s earlier predictions) has not proved to be an instrument of anti-American policy that has threatened any U.S. self-defense interests. Bosco makes some good points.  But there is a certain irony in this kind of defense of the ICC for someone who (probably) supports eventual U.S. ratification of the ICC statute, since it depends on the U.S. continuing to stay out of the ICC.

In a so far continuing exchange between the two academics turned bloggers, David Bosco countered Julian Ku’s interpretation of his previous writing:

I don’t concede that at all. And my first piece of evidence is the United Kingdom, an ICC signatory deeply involved in the Iraq War, the Afghanistan conflict, and various other aspects of the war on terror. Individuals and NGOs have lodged complaints against the UK with the ICC. And the response from the prosecutor? Deafening silence—no UK soldier or politician has been formally investigated. I think the prosecutor’s office has made a determined effort not to step on the toes of major powers at this point. And in a way, major powers that are signatories have an added advantage in that they help select the prosecutor and the judges and (perhaps most important) fund the institution.

I would really want to be rooting for David Bosco’s team, but this paragraph stopped me short. There are three things wrong with David Bosco’s arguments in that single paragraph.

First of all, the ICC did not investigate alleged war crimes committed by the United Kingdom in Afghanistan or Iraq or anywhere else not because it does not want to “step on the toes of major powers”, but because of a fundamental principle in the Rome Statute that is called the principle of complementarity. It is never explicitly mentioned as such in the Rome Statute, but paragraph 10 of the Preamble states that “Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions“, and Article 17 of the Rome Statute provides that (emphasis is mine):

1.         Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a)     The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b)     The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

The ICC is a Court of last resort: it only has jurisdiction if the State which has jurisdiction over the crimes committed is unwilling or unable to carry out the investigation and prosecution (see here for more info). The fundamental rule of criminal law ne bis in idem which provides that you cannot be tried for the same crime twice also applies.

The reason why the ICC has refused to investigate alleged crimes committed by British soldiers is that the United Kingdom – being a perfectly functional democracy committed to the rule of law – and its judicial system are already investigating those crimes. This also leads to another one of the ICC’s function, which international lawyers call positive complementarity. Positive complementarity is about “pressuring” States to prosecute war crimes themselves unless they want to see the ICC to get involved (in most cases, they don’t). For an example of how that works, see Kevin Jon Heller’s post on the situation in Colombia.

The second thing that is wrong with Bosco’s argument is the way he tackles the OTP’s (Office of The Prosecutor) choice in prosecution. It’s important to understand that in its current state – and unfortunately, for what appears to be for a long time still – international criminal justice will not have the capacity to prosecute every single crime and atrocity committed in the course of a conflict. Prosecutors have to make a choice about which criminals and which crimes they prioritize, investigate and prosecute. That is called selective prosecution, and will always be subject to criticism by those who disagree with the Prosecution’s choices. It’s something international criminal justice has had to learn to deal with, especially in the past 20 years.

To assume – and I keep going back to this point – that the Prosecutor selected to prosecute crimes committed in Africa in order to avoid stepping on powerful toes is, at best, incomplete. Of the 5 States that the ICC is carrying out investigations and prosecutions in – Uganda, Democratic Republic of Congo, Central African Republic, Sudan, and Kenya -, 3 of them are self-referrals (Uganda, RDC and CAR voluntarily asked the ICC to intervene and prosecute Rome Statute crimes committed on their territory) and 1 of them is a UN Security Council referral (Sudan). Kenya is the only State in which the ICC opened an investigation on its own. It’s what we call in Rome Statute jargon propio motu powers, that is, the possibility for the Prosecutor to initiate an investigation in crimes committed on the territory of a State Party to the ICC, under the control of the Pre-Trial Chamber.

The OTP is also currently conducting preliminary analysis of situations in several countries, most notably Afghanistan, Georgia, Guinea, Côte d’Ivoire, Colombia and Palestine. Out of 6, only 2 are African Countries. And as far as Afghanistan, Georgia, Colombia and Palestine, well, so much for not wanting to step on the toes of major powers, even though each of these have yet to turn into a full-fledged investigation.

Lastly,  David Bosco brings up the argument that major powers that are members of the ICC, such as the UK, have a control over judges and the Prosecutor and the Court through the funding, casting doubts about the credibility and the independence of the young institution. That argument is, in my opinion, low and easy to make, and much harder to rebuke. There is no hard evidence, nothing that would confirm such a doubt, that has come to light to this day.

There’s not much I can say to counter such an argument, unfounded as it is, but I think it’s a good opportunity to remind people that the two largest contributors to the ICC at the moment are Germany and Japan, two States that have, to my knowledge, not committed any war crimes any time in the past 60 years. Another interesting point to make to have a certain perspective on that issue: the largest group in the Assembly of State Parties (ASP) is the African group, with 31 members. That does not necessarily mean that they hold the most clout within the ASP, but it does give them the opportunity to get their voices heard within the institution.

Mr. Bosco, again, I wish I could root for you in your exchange with Julian Ku. But your arguments are at best incomplete, and at worst, misleading.

Follow me on Twitter @xrauscher_!

UPDATE/CORRECTION: I have very little time, so I’ll go quickly. Following Dov Jacobs’ comment (see below), I just want to confirm that he is right: the reason the OTP decided not to open an investigation in situations involving UK and other allied forces – notably Iraq – was not an issue of complementarity but because the Prosecutor considered that the “gravity threshold”, that is, the systematic and intentional aspects underlying Rome Statute crimes, was not reached. I still think complementarity applies in certain specific cases, and that the UK has little to fear from the ICC not so much because the ICC is afraid to step onto its toes, but because the UK will probably prosecute its own culprits.

For the detailed reasons on why the Prosecutor did not open an investigation in Iraq, see here (PDF). The document is dated 2006, and should new evidence come to light, there is always the possibility that the Prosecutor will change his mind. However, that is very unlikely.

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  1. #1 by David Bosco on 25 August 2010 - 01:49

    great post Xavier–I’ll try to respond at the Multilateralist. My short answer would be that of course complementarity and the ICC’s limited capacity for prosecutions matter. But there may be cases (for example, alleged torture and renditions to torturing countries) that liberal democracies choose not to prosecute. If so, the principle of complementarity is no bar. The question is whether the ICC would, in that circumstance, formally investigate the UK or the United States. Julian Ku thinks the ICC would have already launched several formal investigations against the US had it been a party. I say no–in large part because the ICC has to act somewhat strategically.

    • #2 by Xavier Rauscher on 25 August 2010 - 20:56

      Dear Sir – I would answer, but I’ll wait for your response on The Multilateralist before doing so.

      Thank you for commenting here; I have to say I did not expect it in the slightest!

  2. #3 by martoiu on 25 August 2010 - 08:48

    ==The reason why the ICC has refused to investigate alleged crimes committed by British soldiers is being the United Kingdom – being a perfectly functional democracy committed to the rule of law – and its judicial system are already investigating those crimes.==

    Do you mean that UK is willing to prosecute Blair and his government for the crime of aggression?

    • #4 by dov jacobs on 25 August 2010 - 11:23

      The ICC cannot prosecute the crime of aggression, so any investigation of Irak, whether of the US or the UK, would have to be of jus in bello crimes…

      • #5 by martoiu on 25 August 2010 - 11:43

        I know it cannot prosecute it now and that U.K. must first sign that it accepts the jurisdiction for it. But my question was about the “being a perfectly functional democracy committed to the rule of law”. Imagine that it is 2017, the crime of aggression starts being prosecuted at ICC and U.K. did not declared that it does not accept such jurisdiction and the future government lunches a similar war as in Iraq. Would the U.K., as a “perfectly functional democracy”, prosecute the government?

  3. #6 by dov jacobs on 25 August 2010 - 11:22

    The reason that the ICC didn’t initiate an investigation against british soldiers for Irak is actually the gravity threshold, not complementarity, as the OTP explained itself when declining to open an investigation…
    As for what the ICC would have done had the US been a party, I think it would have not been able not to open at least a preliminary investigation in Irak after 2003, as it did regarding the UK in fact.

    • #7 by Xavier Rauscher on 25 August 2010 - 14:45

      I have little time, so I’m not answering every comment before tonight or tomorrow, but I just wanted to say thanks to Dov for pointing this out to me. I added an Update/Correction in the post to point out my mistake.

  4. #8 by TJM on 27 August 2010 - 20:17

    I’m not well informed on the specific US objections to the ICC, but what stuck out to me was this: “The ICC is a Court of last resort: it only has jurisdiction if the State which has jurisdiction over the crimes committed is unwilling or unable to carry out the investigation and prosecution”

    Who would decide whether a state is “unwilling” to carry out an investigation and prosecution? By what criteria?

    • #9 by Xavier Rauscher on 27 August 2010 - 20:32

      That’s a good question, and one that I actually asked when visiting the Court last Tuesday. There’s no outlined criteria per se, at least in the Rome Statute or the Rules of Procedure and Evidence. You would probably find some criteria in the decisions regarding the opening of investigations, especially in Kenya.

      It’s up for the Prosecutor to decide – under the control of independent Judges – whether a State Party is unwilling or not to prosecute Rome Statute crimes in an adequate manner. It’s very context-oriented: are the accused members of government, is the judiciary independent, etc.

      The Americans are very nervous about that: they fear that the Prosecutor would, for political reasons, turn against American soldiers. They wanted during negotiations that investigations be subjected to Security Council approval, so that they could veto anything that they would consider against their interests.

      Again, it must be insisted that the opening of investigations and the commencement of trials are all done under the control of independent and experienced judges, who have so far proven that they were serious.

      Where David Bosco and I disagree is that Bosco claims that the Prosecutor has so far abstained from opening an investigation outside of Africa by fear of “stepping on major powers’ toes”. He is not completely wrong: the ICC is still young and probably doesn’t have the legitimacy or clout yet to tackle on major powers. But it would be misleading to argue that that is the exclusive reason: as I point out in my post, there are perfectly sound legal reasons behind those decisions as well.

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