Saturday, November 17, 2018
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The Weekly Standard’s ICC Nonsense


Source: Washington Post

Not so recently, Jeremy Rabkin wrote an article for the conservative paper “The Weekly Standard”. The Weekly Standard is mainly composed of individuals from conservative think tanks such as the American Enterprise Institute, the Ethics and Public Policy Institute, and the Foundation for Defense of Democracies. All of these institutions throw a veil of false objectivity over what are merely political hack jobs and delusional editorials.

                Rabkin’s article regards comments by National Security advisor and former AEI goon John Bolton. John Bolton spoke to the “Federalist Society” at a hotel in Washington DC. In this childlike temper-tantrum of a speech rather characteristic of the US’ childish and self-massaging relation to international law, he claimed that the US would impose strict sanctions on ICC officials and refuse to cooperate with the ICC.

                The ICC of course, otherwise known as the International Criminal Court, is an international court based in the Netherlands (The Hague) that prosecutes cases for war crimes, crimes against humanity, and other such actions. It was established by the Rome Statute, which roughly one-hundred twenty UN member countries signed. The US was formerly among them, but withdrew its signature during the Bush Administration. In his speech, Bolton made the accusation that the ICC was “ineffective”. [13] One wonders whether this fits with his next-sentence complaint that the ICC would target “America’s senior political leadership”. Bolton then states that the ICC constituted “an assault on the constitutional rights of the American people and the sovereignty of the United States.” One would also wonder how this fits with his AEI brethren Jerermy Rabkin’s complaint that the ICC has only convicted eight dictators, all in Africa.

                Rabkin first makes the argument that since the US is not a party to the ICC, it has no responsibility to the ICC. He writes, “As a nonparty to the ICC treaty, the United States has never agreed to submit its nationals to the court” (Rabkin, 2018). He believes that  nonparties are not subject to the ICC.

                To the generic American-nationalist like John Bolton, perhaps this would seem so. To one-dimensional conservatives like Rabkin, perhaps this would also seem so. However, simple internet research reveals that this point is both shortsighted and nonsensical.

                Article 13(b) of the Rome Statute states,

“[An investigation may occur in a case when] one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations…” [1]

The UN Security Council then, composed of China, Russia, the United Kingdom, France, and the US, may call investigations. Interestingly then, the Rome Statute allows investigations on groups non-party to the Rome Statute. One such case occurred to Libya, when the Security Council called an investigation into Muamar Qaddafi.

                The investigation was into “Alleged crimes against humanity committed in the context of the situation in Libya since 15 February 2011”. [2] The ICC public page then goes on to say, “Libya is not a State Party to the Rome Statute. However, on 26 February 2011, the United Nations Security Council unanimously referred the situation in Libya since 15 February 2011 to the ICC in Resolution 1970 (2011). ICC may therefore exercise its jurisdiction over crimes listed in the Rome Statute committed on the territory of Libya or by its nationals from 15 February 2011 onwards”. That means that the US voted to bring a non-party to investigation. The investigation though, was no breach of justice nor was it any morally empty overstep in bounds. Non-party states have no legal obligation and requirement to assist the ICC, but cooperation is not unheard of. The idea that simply because the US is not a party, that it should not cooperate is a subtle if gross misrepresentation of fact and really does not stand as a legitimate point.

                Rabkin then writes “Still less has the United States agreed that third-party states can extradite Americans to this court in The Hague…It is something quite different [from state bargaining] for a court claiming to speak for humanity at large to try Americans without—as we see it—any serious legal ground for such action.” Once again referring to the previous point, while Rabkin sees no authority in the ICC to investigate non-party Americans, the US has clearly seen authority in the ICC to investigate Libya. There has been clear precedent for the investigation of non-party groups, and

                Then, Rabkin compares the ICC to terrorists. He writes, “The Trump administration is currently imposing sanctions on Turkey and Iran in part to protest what we regard as contrived charges against captive Americans. We have in the past tried to prosecute terrorists for kidnapping Americans. Why are officials of the ICC entitled to a special privileged status?” The idea that the ICC will wantonly prosecute in the form of Iran and Turkey is delusional. Zhu Wenqi writes for the International Commission of the Red Cross, “The crimes under ICC jurisdiction fall into the category of the most serious international crimes, including war crimes. As stated in Article 8 of the Rome Statute, ‘‘war crimes’’ means ‘‘[g]rave breaches of the Geneva Conventions of August 12, 1949’’. There is therefore a close link, in terms of war crimes, between the Rome Statute and the 1949 Geneva Conventions. Nearly all the states of the world have meanwhile ratified or acceded to the 1949 Geneva Conventions,13 which have indisputably become a part of customary international law. Article 1 common to those Conventions and the corresponding Article 1 in Protocol I thereto lays down the obligation to respect and ensure respect for IHL…”. [3] The ICC does not merely hold people hostage, it functions as an international court for investigations into war crimes. The comparison of a war criminal to an ordinary citizen is incorrect, because presumably most if not all US citizens are not war criminals. The Rome Statute itself states that the non-SC-referred cases under its jurisdiction comprise only, “…the crime of genocide, crimes against humanity, war crimes; the crime of aggression”. These are listed in Article 5, and the terms are defined in articles 6-8, respectively. It can easily be assumed then, that the US citizens which Rabkin tools as emotional talking points have not committed genocide, crimes against humanity, war crimes, or the crime of aggression. Once again, evidence seems to indicate he and most professionals would take that stance as well. If he does not I should wonder why he believes that these people, being war criminals should be sheltered by the US.

                Perhaps his complaint refers to the CIA Director Gina Haspel, who was involved in a black-ops torture program in Thailand. She ran the “Cat’s Eye” base in Thailand (later renamed), and “drafted a cable” for CIA Clandestine Service chief Jose Rodriguez ordering the destruction of the evidence of the torture. [4][5][6][7][8][9] Haspel then, very much committed crimes against humanity according to United Nations Convention Against Torture, of which the US is a signatory. Article 2 of UNCAT states, “Each party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture under its jurisdiction”, and Haspel and the CIA’s actions then are clear violations of such. UNCAT also establishes rules against extradite persons to places where they would likely be tortured, and rules against attempted torture and complicity in torture. Thus, Article 8 of the Rome Statute, which allows ICC prosecution for torture, would allow the ICC to prosecute Haspel. Even taking the most ostrich-in-the-sand look at Haspel’s crimes, she still falls to Article 3. Most importantly for Haspel and neo-conservatives who defend her, parts 2 and 3 of Article 2 state, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture.” [10] Neo-conservative excuses, broadly following the form of Nazi defenses at Nuremburg, are explicitly contradicted by UN convention.

                But I digress. Rabkin’s next point is that the ICC cannot be stopped from prosecuting a case once it has started. He writes, “[The ICC] s a machine on autopilot, grounded on the fantastical supposition that a hodgepodge of international officials would never abuse their powers if designated “judges” and “prosecutors””. However, the Rome Statute specifically allows for appeals to the Appeals Chamber in Articles 81-83. If the accused party believes the trial to be politically questionable, s/he can appeal the decision. The point that judges will abuse their power is also moot, given that Article 36 states that, “The proposal [for new judges] shall be considered adopted if approved at the meeting by a vote of two thirds of the members of the Assembly of States Parties and shall enter into force at such time as decided by the Assembly of States Parties.” The position of Prosecutor, which is currently held by former Minister of Justice of Gambia and formed Legal Adviser and Trial Attorney for the ICTR, Fatou Bensouda, is also elected by the state parties. [11] Articles 55, 66, and 67 of the Rome Statue also establish rights of the accused such as presumption of innocence, information of charges, the right to an appointed lawyer, and the right to examine prosecution witnesses. Rabkin’s idea of an executive who can singlehandedly stop the work of an elected group of qualified judges as well as the ICC prosecutor’s work, is far more delusional and fantastical than the ICC’s current form.

                Rabkin then complains that, “[The ICC] makes no distinctions between democracies and tyrannies, rule of law states and murderous police states…democratic and lawful states [are] the most vulnerable to [the ICC]”. This is precisely the point. No matter what state engages in war crimes, it should be prosecuted equally. If a supposed democracy engages in torture, crimes against humanity, and other such despicable acts, it is no less punishable and morally wrong. Rabkin inserted in a summary of Immanuel Kant’s Categorical Imperative into this article, in order to slyly attack the ICC’s case against Israeli response to Palestine. He writes, “The important thing, as Kant says, is to prove one’s good intentions by making no exceptions—which means, in practice, no serious judgements about circumstances and ground-level realities.” Funny then, that the UNCAT makes no exceptions about circumstances of torture. This is because it has been firmly established by Nuremburg, the Geneva Convention, and UNCAT have all recognized that war crimes are wrong no matter the circumstance.

                However, if by “circumstance” and “ground-level reality” means making exceptions for the US and excusing crimes for political convenience, I applaud Jeremy Rabkin’s ability to nonsense this idiocy together with his complaint that “standing up for human rights is not a priority for most U.N. member states”. Establishing a line in the sand against war crimes involves first establishing that as a basal standard, war crimes are wrong no matter what circumstance.  Rabkin’s complaints fly square in each other’s faces when it comes to any shred of cognitive consonance.

                Rabkin also makes light of the fact that the ICC has only made eight convictions in a stunning display of apparent ineffectiveness. The ICC however, has indicted thirty-nine individuals, all In addition, this contrasts with his complaint of wanton prosecution by the ICC. If the US is such a freedom-loving democracy, and Africa such a cesspool of countries who care not about human rights (as Rabkin seems to subtly imply), then perhaps an investigation will reveal that. Let them investigate, and perhaps the apparently too-lenient and too-methodical procedure will find no violation of law in present, past, and future. I should suspect that Rabkin does not wish for clairvoyance into the US’ deep state, and I also suspect that such an investigation would find substantial evidence of criminal and suspicious behavior.

On another random but interesting tangent, analysis by Truthout.org found that the US provides military assistance to 36 of the 43 dictatorships in the world. The top dictatorship in terms of received military sales is Saudi Arabia, with $2.756 Billion USD in deliveries. Once again then, a state of hypocrisy arises as it seems the US itself does not differentiate between democracies and tyrannies. This hypocrisy is not to state that because of this, Rabkin’s argument is wrong, merely that differentiating between governments is apparently unimportant in the first case.

                As a final complaint, Rabkin then states that Congress should vote in a show of power to give more legal authority. He flippantly asks, “How many members of Congress would take sides against our armed forces to show their higher loyalty to the court in The Hague?” Prosecuting war criminals is not disloyalty to armed forces; it is disloyalty to those who violate human rights and seek to shield themselves under a guise of circumstance and excuse. No armed forces member will be “betrayed” by rightly dissenting members of congress lest they, like Gina Haspel, are war criminals. The entire theme of the ICC prosecuting “American citizens”, and the use of that term within Rabkin’s propaganda piece as a positive term is false. The ICC only prosecutes a specific category of criminals, clearly defined within the Rome Statute and referenced back to the Geneva Convention. The entire article uses it as a misnomer; war criminal, morally vacuous fool are terms much more descriptive and apt to the situation

Rabkin’s article is entirely fixed on several fallacious arguments. First, as previously mentioned, the use of the term American Citizen, in order to pursue sympathy in lieu of actual analysis of jurisdiction, sets up the article to have an entirely incorrect basal tone. While correct in letter perhaps, it is absolutely a lie both in spirit and in tone.

The second argument he references is that because the US is not a party to the ICC, it should not, or has no obligation to cooperate with the ICC. This is false, as the US has hypocritically ordered ICC investigations of other non-party states, thus fully establishing a precedent for such investigations. Furthermore, this is entirely the wrong statement to make. The real question we should be asking is, is “Should we support an institution which shows promise in prosecuting war criminals?” If so, regardless of our signatory status, we should still support the ICC’s work. An explanation of the material causes fails to suffice as a moral explanation, much as “He killed John Doe because the bullet was fired from his gun” will not suffice as an defense to any court or in any ethics debate. The article, as a whole, is replete with what would almost count as white lies and simple distortions of fact. Perhaps Bolton would not expect the simple-minded fools who frequent his page to do such research, but it seems that children are perfectly capable of doing such research.

In a parody of Rabkin, I ask this of the enemy side. How many foolish American-exceptionalist nationalist neo-conservatives like Rabkin will take sides against international treaty and show their loyalty to war criminals? How many pitiful Republicans will simply bow their heads and act as Trump’s slaves? We will find out. It will be useful for the proletariat to know their names.      

[1] The full Rome Statue can be found here:

https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf

 [2] https://www.icc-cpi.int/libya

[3] http://corteidh.or.cr/tablas/a21912.pdf

[4] https://www.vox.com/policy-and-politics/2018/5/17/17366134/gina-haspel-cia-director-confirmed-senate-vote-torture

[5] https://www.nytimes.com/2007/12/07/washington/07intel.html

[6] https://www.dw.com/en/german-ngo-seeks-arrest-warrant-for-donald-trumps-deputy-cia-director/a-39150870

[7] https://www.nytimes.com/2018/05/09/opinion/gina-haspel-cia-torture.html

[8] https://www.pbs.org/newshour/nation/probe-cleared-gina-haspel-in-destruction-of-waterboarding-tapes-cia-memo-says

[9] https://www.theguardian.com/commentisfree/2018/mar/16/gina-haspel-cia-torture-vincent-warren

[10]

https://www.ohchr.org/en/professionalinterest/pages/cat.aspx

[11] http://legal.un.org/icc/asp/1stsession/report/first_report_addendum_contents.htm

[12] Rabkin’s piece can be found here. https://www.weeklystandard.com/jeremy-rabkin/john-bolton-is-right-about-the-international-criminal-court/

[13] Bolton’s full speech may be found here: https://www.aljazeera.com/news/2018/09/full-text-john-bolton-speech-federalist-society-180910172828633.html

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