Secretary Rubio and ICC proponents should engage more directly - opinion

As the first American to have served at the ICC, I know from personal experience that Rubio’s criticisms of the court must be taken seriously. However, just as it is counterproductive for ICC proponents not to acknowledge and address Rubio’s legitimate concerns, it is disingenuous of him not to recognize and respond to the United States’ hypocrisy toward international criminal courts.

Rubio said that the US never consented to the ICC, so the country should not be subject to this court. He emphasized bipartisan opposition in both the White House and the US Congress to joining the Rome Statute.

Rubio is correct. A fundamental principle of international law is that, with extremely limited exceptions, states are not bound by treaties to which they have not consented.

In refusing to submit the Rome Statute to the US Senate for ratification in 2000, president Bill Clinton noted his “concerns about significant flaws in the treaty,” primarily over this issue.

Two years later, for mainly the same reason, the US Congress passed, and president George W. Bush enacted, a law that authorizes the president to use “all means necessary and appropriate,” including the use of force, to free Americans and allies “detained or imprisoned” by or for the ICC.

Rather than simply waving away concerns about the ICC’s jurisdiction, ICC proponents should retort that, for almost a century, the United States itself has violated the very principle Rubio now champions.

The US supported, and even led, the establishment of several ad hoc international criminal courts – including the post-World War II Nuremberg and Tokyo tribunals as well as the post-Cold War United Nations (UN) International Criminal Tribunals for Rwanda and for the former Yugoslavia – all of which imposed jurisdiction on states that had not consented to these courts’ foundational agreements.

The US has even promoted the ICC itself. For example, in 2005 the US could have but did not block the UN Security Council from referring to the ICC the situation in Darfur, Sudan – which had not (and still has not) consented to the Rome Statute.

Of course, hypocrisy in international law and global affairs is nothing new; the US, like any country, is entitled to act inconsistently; and the Trump administration is within its right to adopt a different policy toward international criminal courts than its predecessors. However, those are different matters than ignoring Rubio’s concern or baldly asserting that he is wrong.

Rubio further argued that the ICC’s internal checks do not allay US concerns. The Rome Statute includes features that are supposed to prevent frivolous or politically motivated charges. One is Article 17’s “principle of complementarity,” which holds that cases are inadmissible where a state that has jurisdiction over the case “is unwilling or unable genuinely to carry out the investigation or prosecution.”

Another is Article 18’s requirement that a “pre-trial chamber” of ICC judges authorize investigations of any cases referred to the ICC by a state party or initiated by the chief prosecutor. ICC opponents emphasize that it is ICC officials themselves who determine Article 17’s unwillingness and inability and Article 18’s authorization.

In addition to Rubio’s worry that institutional self-checks are not necessarily genuine restraints, he has valid reason to doubt the judgment and impartiality of ICC staff.

A sexual predator thus led all ICC prosecutions for more than five years and falsely, recklessly, and deliberately promoted a conspiracy theory against Jews that fuels the global surge in antisemitism in a pathetic, failed attempt to cover his misdeeds.

Moreover, Rubio has reason to be specifically concerned about anti-American sentiment at the ICC. Rather than dismissing this worry as paranoia, ICC proponents should acknowledge that some supporters and even staff of the ICC indeed exhibit anti-Americanism.

In 2003, I became the first American to serve at the ICC, when I clerked for the court’s inaugural chief prosecutor. As the ICC did not yet have any cases, staff often discussed what the first ones should be.

Around that time, a genocide in Darfur had erupted, and widespread, systematic atrocity crimes raged in Afghanistan, the Democratic Republic of Congo, and elsewhere.

I don’t know how representative my colleagues’ views were or remain for ICC staff, but Rubio is, again, correct to be concerned about bias at the ICC against the US – and its allies.

Instead of rejecting Rubio’s criticisms of the ICC outright as “barely warrant[ing] response,” the court’s proponents would do well to engage more directly and honestly with that substance. Rubio himself should address US inconsistency on international courts. Only then might there be hope for necessary ICC reforms and better US-ICC relations.