The US opposition to the ICC makes sense. Why should the world’s pre-eminent criminal favor a tribunal where its crimes can be judged?
David M. Green | [print_link]
God (if only there was one) only knows where the story of human development is leading next. We live in time unlike any other in history, in the sense that lightening-fast technological acceleration guarantees just one thing for sure, that the future will be very different from the present. Not very long ago, you lived and died just like your grandparents had. Tomorrow, question marks hang over everything from the continued existence of life on the planet to the very engineering of the forms it might take. PHOTO: George W Bush’s pick to the UN, the criminally reactionary John Bolton doing his job at that international body. Obama’s policies, style aside, remain essentially teh same.
When it comes to the structure of our system of international politics, we are absolutely stuck in adolescence, complete with all the pimples, difficult growth spurts and general awkwardness that entails. The failure of the international political system to grow along side the technologies related to war, commerce, science, engineering and environmental impact represents something worse than a wholesale disaster in the making. It is a disaster that has long ago already begun to arrive.
In the era succeeding the Thirty Years’ War (1618-1648), Europeans transcended feudalism as a form of international organization and adopted the so-called Westphalian System, named for the place in what is today Germany where the peace agreements ending that war were declared. It is a system characterized principally by anarchy at the international level and full sovereignty at the state level. Meaning that there is no significant governmental structure above the level of countries, each of which retain full control over their own policy choices. It is, with some noteworthy but not fundamental modifications, still the structure in place on our little planet to this day, having been globalized by European colonialism and third world decolonization alike.
Whatever value such a system of largely independent states once might have had, it’s become a prescription for disaster today. The reason that is the case is no different than the reason the Articles of Confederation were disastrous in late eighteenth century America. The former colonists, having won the war, were busy losing the peace through their insistence on radical decentralization of power, which inevitably led to multiple currencies, a patchwork of trade relations, inability of the central government to raise taxes or seriously conduct diplomacy abroad, and tariff wars if not nearly a real one. Many of the Founders were rightly growing embarrassed by their creation, which is why they ditched it so fast, replacing it with the Constitution drafted in Philadelphia in 1787.
They had run up against a perpetual problem of political organization that more or less exists everywhere, all the time. It is the problem of crafting polities with appropriate degrees of vertical integration. In other words, finding the most suitable balance in power-sharing questions between the units and the whole. The Europeans have been dealing with this issue for half a century at the continental level, and many states within Europe – Britain, Belgium, Spain, etc. – for longer themselves. South Asians and Nigerians have struggled over this question, as have Canadians and former Yugoslavs. This will become a major problem in Africa if the African Union grows in substance and capacity, precisely because of that growth. The United States has been grappling with this issue since before its founding, not least in the Civil War, which was fought fundamentally over this point, not slavery.
The problem is reconciling two competing simultaneous desires, for freedom and local control, on the one hand, and on the other for the conflict prevention and broad extension of fundamental principles that come from locating power and policy decisions at a more universal level. In the American context, we might think about it this way: Those of us in New York will appreciate our autonomy so that we don’t have to do things the same way they do in Mississippi, and vice versa. On the other hand, if we have too much of that autonomy, we retain the capacity for armed conflict between the two states. Moreover, if we subscribe to certain fundamental human rights principles – for instance, opposition to slavery – we have to enact those laws at the national level. Allowing each state to do what it wants will mean that those principles will ultimately apply in some places only.
As mentioned above, this very same issue shows up in a zillion contexts, but it is especially relevant today in the burgeoning relationship between the nearly 200 countries of the world and the growing international sphere, as we transition from the Westphalian System to something else, under the relentless drive of globalization. At this moment, we live in a world where interaction of all sorts has gone global, but decision-making power remains local. We are sitting in the 21st century trying make our way, employing an institutional framework for governance that was literally well-suited for the 17th. The same eternal struggle between parts and whole remains to this day, only now it is less about New York and Mississippi versus the federal government as it is about America and Iran versus global institutions.
But the local rule versus universality antagonism remains just as prevalent. Do you want to make sure there is no slavery in the world? Well, then you can’t leave it up to individual countries to decide. If you really want that, you have to legislate it and enforce it internationally. Do you think women everywhere should be entitled to education, employment and political power in equal measure to men? Well, you’re not gonna get that if you allow each state to set its own policy. And – to expand this notion fully to the level that world federalists have dreamed about for centuries – would you like to see war ended forever? Well, you can, but doing so requires that each country give up possessing a military arsenal of any serious capacity, and that the UN or some other similar institutional expression of global governance instead maintains the overwhelming force necessary to prevent war-bent states from acting on their intentions.
The catch, of course, is the price of admission. To have a world government able to tell other states what they can and cannot do means that you have to be willing to have your state be told as well. That idea of women’s rights isn’t going to go down so well in Saudi Arabia. Meanwhile, a prohibition against the death penalty or the curtailment of war-making capacity will attract few fans in the US. But you can’t have one without the other. So far, at least, the governments of most countries have preferred sacrificing peace and global norms of justice on the altar of state sovereignty. This should hardly come as a surprise, given that power is a zero-sum game in this context, and for every bit that is held by a world body, precisely that same amount will, by definition, have been subtracted from each national government. In other words, you can save the tuition money you would have spent on years of graduate school. You don’t need a PhD in political science to appreciate why the folks who stand to lose the most oppose losing it.
Of course, nobody stands to lose more than the most powerful of countries, which goes some way toward explaining the abysmal, embarrassing record of the United States when it comes to international law and world federalism. Not all the way, though. Add in the tradition of individualism which is so much a part of American political culture, plus a certain uniquely American arrogance and bellicosity, and now you have a really toxic stew of nationalism and hostility to most any form of shared international governance that would limit our behavior.
The upshot is that no country is more messed up than the US when it comes to the question of international law and governance. The list of key international treaties to which the United States is not a party is astonishing to anyone who has spent a lifetime listening to the mythology about the “rule of law” here. Often, these fundamental, basic documents have been ratified by nearly every country in the world, but then there is the US along with Somalia and North Korea as the only scofflaws from nearly 200 countries in the world. Examples include the Kyoto Protocol, despite the fact that no one produces near the amount of greenhouse gases that we do, the Convention on the Rights of the Child, which we may soon be the only country in the world not to ratify, the Convention on the Elimination of All Forms of Discrimination Against Women, which the US is the only industrialized country not to ratify, the landmine treaty, most of the International Labor Organization Conventions, the International Covenant on Economic Social and Cultural Rights treaty, sometimes referred to as the “International Bill of Rights”, and the Migrant Workers Convention.
Those are just for starters, but nevertheless that’s quite a record for a country which claims to be all about pioneering freedom and justice and human rights. But my favorite of all is the case of the International Criminal Court. This very new global institution was created for the purpose of holding the Hitlers and Milosevics of this world accountable for their crimes against humanity. Bill Clinton, in his typical fashion, reluctantly and half-heartedly signed the Rome Statue, the ICC’s founding treaty, but then did nothing with it, including failing to push for Senate ratification. George W. Bush, in his typical fashion, unsigned the United States from the Rome Statute, but then proceeded to go much further. His administration started leaning on every other country in the world, badgering them to cut bilateral agreements exempting American citizens from coverage by the Court.
Think about that for a second. That represents the United States saying that we don’t want there to be a court which prosecutes people for genocide, mass war crimes, or crimes against humanity. But if there has to be such a court we will undermine it in every way conceivable, and we will use coercion to make sure that we don’t have to play by its rules, and to guarantee that it can never try any American for huge crimes that shock the world’s conscience. Now everybody bow and scrape before the world’s great leader in the fight for freedom and human rights!
Fortunately, that was just the evil Bush administration doing what they do best, right? Well, yeah, but only if you ignore the fact that on almost every question that matters Barack Obama represents little other than George W. Bush’s third term. Just last month there was the US at it again, undermining the rule of law at every possible juncture, this time under the direction of the president with the big toothy grin, not the one with the scowling smirk (meet the new boss, same as the old boss). An ICC review conference was held in Kampala to consider the idea of adding aggression to the list of crimes punishable by the Court. And there was the US, trying to block that action, or at the very least trying to make the UN Security Council (where the US has a veto) the only forum where the crime of aggression can be charged. Unfortunately for regressives everywhere, by not signing the Rome Statute, the United States lacked a vote in Kampala. But sadly, the US was nevertheless still allowed to be present and make its arguments. Fortunately, the rest of the world just blew us off again and went ahead with the new law bring aggression under its jurisdiction, and with allowing the Court to make such charges itself instead of relying on the Security Council.
Of course, one might stop for a moment and just ask the simple question, why would the United States even want to oppose trying individuals for acts of aggression that are responsible for mass death and mayhem? Hmmm, I dunno. Could Iraq have anything to do with that? Panama? Grenada? Vietnam? Actually the Court’s jurisdiction is not retroactive, but you get the picture. If you are in the habit of kicking the asses of other countries whenever you feel like it, you might not like anyone curtailing your addiction.
The ICC is living testimony to the fact that the world is moving – slowly, to be sure – away from the anarchy of the classic Westphalian System, and dragging the most recalcitrant regressive reprobates (you know who we are) along with it. It’s not an easy trick, in part because there is a real legitimacy to the idea of not universalizing all, or even most, policy issues, but only those which absolutely must be located at a global level, retaining the rest for national, provincial and local polities to grapple with as they individually see fit. This is the doctrine of subsidiarity, a key notion in the practice of federalism, that stipulates policy decisions should always be made at the lowest level pragmatically possible, and it’s a good idea.
Thinking about even the outside possibilities of global governance in 2010 necessarily means envisioning a very weak mix when it comes to the powers of an international government. That’s far less than optimal from the perspective of supporting human rights and other issues, many of which would have be universalized at a later date. But, however disappointing the partial development of a world government might be at this time, it would in fact be more than helpful if one could be created purely for purposes of dealing with the most pressing global issues of our time, including environmental crises and war. These are global problems which cannot be solved at the level of state governments, which these problems and these governments been kind enough to demonstrate over and over again.
We’ve already taken some steps in this direction, as both the ICC itself and its remit against crimes of aggression indicate. But, as never before in human history, the race is now on between the human capacity to destroy and human maturity to adopt mechanisms preventing such destruction.
The former is out to a very big lead so far, while the solution of global governance has hardly even begun to dent the consciousness of most people on the planet.
My guess is that we’ll pay dearly for that imbalance.
DAVID MICHAEL GREEN teaches pol sci at Hofstra University (NY).