Comment and Reply to Comment on Pompeo Post

Attorney Bryan Miller recently commented on my post Pompeo’s thuggish threats against the ICC: a Trumpian call or electioneering hyperbolic fodder?   Occasionally, a comment comes along that demands more than just a brief response. This is one of them. For convenience, Bryan’s comment and my response appear back to back.

COMMENT ON POST

Michael:

I find your remarks silly that Pompeo is trying to elevate his profile to “Trumpian”. Much of the premise of your article is built on a weak, if not crumbling foundation, assuming there is foundation.

The “ICC” is only independent on paper-it is a very far cry from an independent body-is heavily influenced by the United Nations and the Nation States that form the ICC.

As to the 123 Assembly of Party, where is China, Russia, and the United States? In other words, it is an International Court without any of the World Powers.

But the biggest canard in your article is that the ICC is independent of US support-the ICC was built with US support, there a significant number of people that have tried to see that it is a successful body, thousands of US personnel attended Kampala. We had a roving ambassador for War Crimes.

As an American trained lawyer, with a focus on criminal law, I would expect you to know better that the probability of handing over the investigation of US military to a third party (biased or not) violates the United States Constitution.

The whole tenor of your article is an exercise in the art of writing something when you have little to say. Obviously, you loathe Trump and his bunch, which is your right and forms the foundation of the First Amendment but somehow I expect more of you. It is one thing for an inartful person of diminished intellect to write inane articles, but you know better and understand better. The article is beneath you.


REPLY TO COMMENT ON POST

Dear Bryan,

Thank you for reading and commenting on this post. Much appreciated, even though you misrepresent my arguments and misapprehend some of the fundamentals.

To begin with, let me parry your parting personal remarks, which, at the risk of sounding anti-Trumpian, are quite Trumpian. My observations have nothing to do with loathing Trump, even though I make no secret of the fact that his behavior, remarks, and policies (if you want to call them that) are divisive, ill-conceived, and, in no small measure, contrary to US values. But that is beside the point. Trump and his administration are entitled to disengage the US from many of the global institutions it helped to create after WWII, deny global warming, un-sign treaty agreements, embrace despots and thugs masquerading as statesmen on the world stage (elected, selected, or otherwise), and behave as master of the universe with the rest of the States expected to yield to the US’s self-anointed exceptionalism.

Though I may find much of Trump’s behavior repugnant, I find no fault in his disdain to having the US sign on to the Rome Treaty — to surrender part of the US’s jurisdiction and sovereign rights to the ICC, which, as I’ve noted on numerous occasions (see here, here, here), has thus far underperformed and failed to live up to its promise. There are legitimate reasons for the US and other States to be guarded against ceding any of their jurisdiction to the ICC by joining it — at least not until it gets its act together. That said, improvement is occasionally best achieved by working within, but that is a matter of choice. So no, my post on Pompeo’s thuggish/threatening remarks have nothing to do with loathing Trump. Perhaps my riposte to your comments will clue you in.

First, you state that the ICC is “only independent on paper” because it is heavily influenced by the UN and its Member States. While there may be validity to this statement, it is also misleading. Yes, the ICC is “influenced” by the UN in that the United Nations Security Council (UNSC) — of which the US is one of the permanent five members (P5) with veto powers — has a right to make referrals to the ICC Prosecutor acting under Chapter VII of the UN Charter (Article 13(b) of the Rome Statute) or to request a deferral of investigation or prosecution for up to a year (Article 16). And yes, UN Member States who have signed the Rome Statute (the Assembly of States Parties (ASP)) play the role of the ICC’s legislative body. So what? How does this make the ICC “only independent on paper”? You are conflating the issue of the ICC’s independence as a judicial institution with the institutionalized role of the UNSC and the ASP: institutionalized “influence” of Member States does not impact the ICC’s independence as a Court. To my knowledge, there is no evidence that the ICC Office of the Prosecutor (OTP), the Prosecutors, or the Judges are or have been instructed by the UN or its Member States on how they are to exercise their statutorily-provided authority and discretion in their day-to-day functions. That is not to say that the ICC (as all other international(ized) criminal tribunals and courts) is beyond being exposed to and swayed by (geo)politics and ancillary agenda. The same can be said of the US Supreme Court, as well as many other courts the world over. But again, there is no proof — or at least not that I have seen — that the ICC OTP or the Judges of the various Chambers are acting in bad faith — even if, on occasion, they get things wrong. If anything, considering that public opinion matters as does public perception, it is heartening to see that the ICC, unlike the ICTY in its infancy, is not acting as a robotic conviction factory; the recent acquittals, as embarrassing as they may seem, speak volumes of judicial independence, and yes, courage.

Second, you argue that the ICC cannot be considered an “International Court.” You base this argument on the fact that the ASP does not include China, Russia, and the US. To borrow, again, the title from the first track of Kind of Blue, Miles Davis’ 1959 legendary album, So What. True, these States are not part of the ASP. However, China, Russia, and the US are UNSC P5 members. Do not their engagement with and referrals to the ICC (e.g., Sudan, Libya) validate their acceptance of the ICC as a permanent international court? If the ICC is not a legitimate international judicial institution, as Bolton, Pompeo (and others such as yourself) would have everyone believe, then why did the US turn over to the ICC Bosco Ntaganda when he voluntarily handed himself into the US Embassy in Rwanda on 18 March 2013? Yes, this was under President Obama’s watch, but it does not mitigate the fact that the US engaged, engages and will continue to engage with the ICC — when it is to its advantage to do so, of course — because it is a legitimate international judicial institution.

Third, you state that the “biggest canard” in the post is that “the ICC is independent of US Support.” Aside from this being a false reading of my post, you elegantly make the point that I had perhaps excessively nuanced to absurdum: the US’s selective engagement (not necessarily bad) and the hypocritical stance taken by the US when denouncing the ICC as illegitimate. You are correct that the establishment of the ICC benefited from US support — until, of course, the time would come (if ever) to yield to its jurisdiction in cases where the US was unable (not ever likely) or unwilling (likely, if you consider how the US dealt with the torture and prisoner abuse at Abu Ghraib Prison) to investigate and prosecute in US courts individuals alleged to have committed crimes falling under the Rome Statute. And yes, irony of all ironies, the US (the Obama Administration) sent a delegation to Kampala Review Conference in 2010, when the crime of aggression (and its definition) were being debated as one of the crimes falling under the ICC’s jurisdiction. But what does this tell us?

Bluntly, that the US or at least Trump & Co find the ICC as illegitimate, a hoax, an abomination, a menace to the US and some of its friends (why else have US past and present administrations gone around multilateral or bilateral agreements, known as Status of Forces Agreements (SOFA) on the rights and privileges of U.S. personnel present in a country in support of the larger security arrangement), while at the same time engaging the ICC for the purposes of influencing the ICC’s (ASP’s) adoption of the definition and elements of the crime of aggression. If the ICC is so, so illegitimate, why bother? Because, the issue is not about legitimacy or independence, but about dictating terms that others should subscribe to and abide by lest they find themselves in the ICC dock. Playing, or shall we say controlling the game, from the sideline. In any event, my post on Pompeo’s supposed policy should be viewed in the context of the Trump Administration, and more notably, Bolton’s recently announced new US “policy” concerning the ICC, though it is hard to overlook the US’s hypocrisy in how its dealing with the ICC.

Finally, you seem to take issue with the fact that the ICC expects to be allowed to conduct investigations in the US (as no doubt it expected to do in the Philippines — a matter for another post). Here you seem to muddy the waters. It would take too long to unpack much of what is incorrect with your claim that the US Constitution would be violated by the ICC’s investigation into the US military, but suffice it to say, if crimes were committed by members of the US military in an area falling within the ICC’s jurisdiction, and if the US refused to investigate or failed to properly investigate and to take appropriate actions, then the ICC would have every right to conduct a preliminary examination that may lead to an investigation and so on (for more on the how the OTP approaches investigations see my post here). Put differently, where crimes are alleged to have been committed within the territory of a State Party, jurisdiction is automatically conferred on the ICC, meaning, it need not seek nor obtain permission to commence an inquiry which may lead to a full-blown investigation, and potentially resulting in charges (indictments).

It matters not that the US is not a signatory to the Rome Statute (see more on my position here). Granted, the concept of complementarity is not exact and is subject to differing views (as I noted in my post on Bolton). And here, I would agree that no State — member or not of the ICC — should readily or casually or unquestionably accede to claims by the ICC OTP that due to a failure to investigate and, if necessary, properly prosecute in an independent and competent domestic court of law, ineluctably, it must yield to the ICC OTP to carry on these functions. Proof is needed, not merely assertions. Every State is entitled to make its case in showing that it has met or is meeting its responsibilities as a responsible State (see here for an interesting post on complementarity inspired to nudge the ICC OTP for a re-think).  But also, let’s do a reality check: what does investigate mean? Yes, the ICC can go in situ of a State Party to try to collect evidence, but that is about as far it can realistically go. Nothing compels the US to allow investigators to have access on US soil to archival material, military personnel and civilians, etc. And as I noted, any investigations in the US will likely commence with a written request for access, which, expectedly, will be denied. So, it goes without saying that whether visas are issued or not, the realistic possibility of the ICC conducting investigations in the US is, was, and will continue to be a non-starter.

Hence my post on Pompeo’s pomposity: holding a press conference to announce a vacuous policy.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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