Friday, April 08, 2005

Domestic Appeasement; Foreign Schizophrenia

Julian’s point is well taken; what we may be seeing in the Bush administration is a shift to a more realistic foreign policy and less a continuation of the schizophrenia of the first term. I hope that is correct. But by the Administration's attempts to appease the fringe elements in its party, I fear that it is not.

I accept (and have a nod in my original post) that the general view is that the Bush foreign policy has been consistent to the point of being almost wholly focused on “the axis of evil.” My point is that so much commentary on Bush’s focus on certain ends has obscured the rather wide policy swings on the issue of means. That is where we have had the most significant rifts with our allies: not over the issue of whether Iraq or Iran or North Korea is a problem, but on the question of how to handle these problems. This is more than simply applying international law because we want to make nice with our allies (and you know Taft’s argument is not that, Julian), it is about using international law because it provides a more effective tool for our policy ends than the “go it alone” approach. See here and here for two discussions.

I think that the Administration's hostility to international law and institutions is driven more by the right wing's irrational fears than by an appreciation of realistic foreign policy making. His father, remember, was a master of using international institutions to forward US policy interests. His father also lost an election when the Republican Party right wing jumped ship. (Anger over not flouting the UN and driving on to Baghdad and anger over NAFTA, to give two examples, played a role in this.)

In the end, Julian, your post doesn’t seem to defend foreign policy schizophrenia so much as hope that what we are seeing is less schizophrenia and more a shift to a thoughtful strategy of give-and-take. I would ask, by the way, what is to be gained by some of this give-and-take in practice. Why withdraw consular relations jurisdiction after we tell courts to follow the ICJ (except for the fact that we feared we were about to lose a case and we didn’t want to play anymore)? Why take the Law of Sea Treaty—supported by our military, our industry, the Senate Foreign Relations Committee, and Democrats—and support it one minute, then let it dangle precipitously (except for the fact that some far right idealogues have drawn sci-fi scenarios of it being an attempt at world government)? Why twist our stance on the applicability of the Geneva Conventions to the point that no-one seems to actually know what our point of view is anymore?

Give-and-take as a diplomatic strategy works when you use it to send a coherent signal; too often, though, the Bush team is just making noise.

And the far right likes what it's hearing.

A Defense of Foreign Policy Schizophrenia

Chris makes some very good points about the Bush Administration's foreign policy "schizophrenia" and listing the nomination of Bolton as symptomatic of the problem. Not surprisingly, I disagree. I think this "schizoprenia" is actually a good thing.

I do agree that there is some back-and-forth in the Bush Administration's foreign policy recently, but I actually think this reflects an increasing sophistication rather than increasing confusion. Indeed, the main complaint up to now with the current administration has been that it has been way too consistent in the pursuit of single-track ideals and policies to get to those ideals without taking into account the complexity of the real world they are facing. I was reminded of this by the rolled eyes from some audience members during ASIL meeting to Secretary Rice's admittedly somewhat trite invocation of "freedom and democracy" as the primary goals of U.S. foreign policy.

I take this is also the standard criticism of the U.S. insistence on denying the Geneva Convention protections to Al Qaeda members. This approach is hurting you with your allies and with your efforts to win over the Arab world so why not apply the GC and other protections since it won't really hamper you very much anyway (that was the Taft argument that Chris praises here)?

It seems that Bush II (or perhaps Bush III?) is beginning to adopt a more pragmatic give-and-take approach. Give (say the Darfur referral to the ICC) but make sure you "take" (say Wolfowitz at the World Bank). Support the U.N. generally (notice how Bush has not called for Annan to step down) but keep the pressure on for U.N. reform (that would be putting Bolton there to watch over them, see the WSJ's explanation of this strategy). Comply with the ICJ order, but withdraw from the Optional Protocol. It seems that if a President named something other than Bush was engaged in this sophisticated approach, the over-educated folks at places like the Council of Foreign Relations and ASIL would be nodding approvingly over their glasses of chardonnay.

On the flip side, although I respect very much what the folks at places like Democracy Arsenal are trying to do, I think there is as much "schizophrenia" in foreign policy on the left these days, if not more. What exactly do progressives stand for in foreign policy today? More support for international law and institutions? But what about that pesky WTO and NAFTA? Reduction in the use of U.S. military force abroad? But what about humanitarian interventions? Admittedly, these are difficult questions. But both sides have to deal with them. And when President Hillary comes into office (a reality that I fear lies in our very near future), I have no doubt that the complaints about her "foreign policy schizophrenia" will erupt nearly immediately.

WTO Watch: US Strikes Jackpot

The WTO's Appellate Body ruled yesterday that most U.S. laws (including state laws) restricting internet gambling do not violate WTO obligations (The decision can be found here). This reversed a Panel Report in favor of Antigua and Barbados alleging that U.S. restrictions on offshore internet gambling was discriminatory against their internet gambling industries. This is a complicated issue, and some U.S. laws with respect to horse racing will probably still be found in violation, but the upshot is that the U.S. wins big by getting the WTO to agree to a "public morals" exemption for its internet gambling regulations.

To me, though, what is interesting here is what would have happened if the Appellate Body upheld the original Panel Report against the U.S. Would the U.S. really have complied (by changing at least three federal statutes and six state laws) amid threat of trade sanctions imposed by Antigua and Barbados? It may be that other countries (like the EU) would jump on the bandwagon, but if not, I somehow doubt the U.S. would have ever complied with a negative WTO ruling in this case.

Thursday, April 07, 2005

Can a Court Second-Guess the President's Conduct of Military Commission Trials?

Today the D.C. Circuit Court of Appeals heard arguments in Hamdan v. Rumsfeld, a case involving a challenge to the military commission trials of detainees at Guantanamo Bay. This is an enormously complicated case involving questions concerning the judicial enforceability of treaties such as the Geneva Convention, the President's power to interpret and apply those treaties, and the President's authority under federal law to try enemy combatants in military commissions. ( For Hamdan's brief, see here.)

One of Hamdan's attorneys is Professor Neal Katyal of Georgetown, an academic superstar who can also write a great brief. (For the U.S. government's less impressive but still good briefs, see here and here.) He has also gathered a wide variety of amicus briefs (see here for his collection briefs filed in Hamdan and here for the district court's decision.

Still, despite Kaytal's briefing, I don't think his client is going to prevail here. He has a difficult case to make: that (1) the G Conventions are judicially enforceable; and (2) that even if they are, the President's interpretation of them is so wrong that the court can reverse his judgment on a matter that implicates foreign policy.

The strongest argument, I think, is not based on treaties or customary international law but statutory: that federal law requires the President to give Hamdan the right to be present at his commission trial. Unfortunately, the D.C. Circuit panel today was somewhat skeptical of this argument, pointing out that the right to be present is hardly a fundamental feature of military trials worldwide. This means that Hamdan might indeed lose here, although given the litigation firepower involved here and the importance of the case, everyone expects that the Supreme Court will eventually hear this case. So stay tuned...

Foreign Policy Schizophrenia

Peggy’s post and Julian’s comment to her post set out some good arguments as to why John Bolton is or is not the right person to send to the UN. (Democracy Arsenal, by the way, has the top ten reasons why John Bolton should not be confirmed. Also note this post.) Regardless, I think there is little doubt that Bolton will be easily confirmed. That being said, I do wonder whether his confirmation, particularly in light of the rest of the second term foreign policy team, will continue the foreign policy schizophrenia that has dogged the Bush Presidency.

I know, many people would say that the Bush foreign policy has been quite coherent: pursuit of terrorists, pursuit of rogue states, skepticism (or outright hostility) towards international organizations and multilateralism, etc. But I think this misses some of the most important divergences within the Bush team as well as policy flips in recent years. The contentious issues have not always been what goals to pursue, but how to pursue them. (Though defining foreign pilicy goals has been contentious as well.)

At times there seems to be a real tug-of-war between moderate views (treat with comity ICJ judgments on the Vienna Convention on Consular Relations; let’s get the Law of the Sea Treaty ratified) and knee-jerk anti-internationalism (get out of the Consular Relations Optional Protocol! Beware the Law of the Sea Treaty!). This is also borne out in the mix of senior advisors (most obviously the clashes between Powell and Rumsfeld in the last term but now in the mix of foreign policy moderates on one hand, and folks like John Bolton and Douglas Feith, on the other).

Much has been made of President Bush liking to have a wide variety of views among his advisors and then choosing what he thinks is best; I’m all for such a leadership technique. The problem is that recent foreign policy hasn’t had this type of feel: rather its more like a lot of bureaucratic in-fighting with one faction winning out one day, another the next. The result is policy schizophrenia: write a presidential memo supporting the application of ICJ opinions one week, take away its jurisdiction on consular relations issues the next. Say the Law of the Sea Treaty is important, then sit and let it languish. Say the Geneva Conventions don’t apply in the War on Terror, then say we’ll apply most of them anyway, then repudiate your counsel’s legal memo on the issue.

In such an environment, who you have as your public face is very important because, quite frankly, allies need to be reassured that we aren’t about to do some crazy about face. I doubt John Bolton is that guy. I did not find the National Review Online piece that Julian linked to reassuring in the least; it made Bolton sound like someone who would support the UN only as long as the UN did exactly what the U.S. told it to do. That’s not going to win friends and influence allies and it's not going to lead to productive UN reform. Sure, some have said it took Nixon to go to China and so it will take John Bolton to go to the UN. The difference, though, is that Nixon actually gave a damn about relations with China.

Transcript of Justice Ginsburg's Address to the ASIL

Following up on my previous post on Justice Ginsburg's speech at the ASIL, I note that the transcript to Justice Ginsburg's address is now available, here, at the ASIL website.

Wednesday, April 06, 2005

You Can't Know the Players Without a Scorecard

Foreign Policy's cover story on the "Committee that Runs the World," i.e., the Bush national security team, is well worth a read. (Try playing the "two degrees of Henry Kissinger" game at home!) Over at Democracy Arsenal, Derek Chollet has this positive assessment of the second-term "dream team" Condoleezza Rice is assembling at State. Over at Slate, Fred Kaplan has this argument on why John Bolton is actually out of step with Bush's current foreign policy team -- and certainly out of step with Rice's statement at the ASIL meeting that the promotion of international law is "one of the pillars" of U.S. foreign policy.

Taft Was Right

William Taft gave excellent legal advice to the Secretary of State and to the President. The Supreme Court, our international allies, U.S. public opinion, and the President have each vindicated him. The advice of the DOJ’s Office of Legal Counsel, by contrast, proved to be short-sighted or worse. If you haven’t already done so, please read Taft’s memo on the applicability of the Geneva Conventions to detainees; this is what good legal advice looks like.

The OLC argued that the Geneva Conventions shouldn’t apply either to al Qaeda or the Taliban based on the completely novel and controversial legal opinion that the Geneva Conventions didn’t apply to “failed states.” It also argued that the President could suspend the operation of the Geneva Conventions and that customary international law did not bind the United States.

The State Department found that the “failed states” argument is utterly without support and it “badly confuses the distinction between states and governments in the operation of the law of treaties.” As for Presidential suspension, State replied that the OLC memo was “legally flawed and procedurally impossible at this stage.” It also noted that the OLC memo did not even address the role of customary international law in how detainees should be treated and wryly quoted Justice Marshall’s quip that “to ask the question is to answer it.”

John Yoo and the various OLC authors were not experts on the laws of armed conflict and, in the midst of difficult times, they had to address complex material that was new to them. White House Counsel Gonzales had asked them to be “forward leaning” in their memoranda concerning the latitude U.S. forces would have in treating and interrogating detainees. By contrast, Taft and the State Department attorneys, along with the uniformed JAGs (who, according to numerous reports in DC at the time, tended to concur with the State Department view), were experts in the subject matter. Taft was no stranger to having to make hard decisions, he was General Counsel of the Department of Defense and then the Deputy Secretary of Defense in the Reagan Administration. He was also briefly the Acting Secretary of Defense. In the Administration of George H.W. Bush, he was the US Representative to NATO. Perhaps it was in light of his significant experience and expertise that he gave John Yoo some sage advice in his cover note to the State Department memo:

John, I understand you have long been convinced that treaties and customary international law have from time to time been cited inappropriately to circumscribe the President’s constitutional authority or pre-empt the Congress’s exercise of legislative power. I also understand your desire to identify legal authority establishing the right of the United States to treat the members of the Taliban Militia in the way it thinks best, if such authority exists. I share your feelings in both of these respects. I do not, however, believe that on the basis of your draft memorandum I can advise either the President or the Secretary of State that the obligations of the United States under the Geneva Conventions have lapsed with regard to Afghanistan or that the United States is not bound to carry out it obligations under the Conventions as a matter of international law. That may mean, of course, that we must determine specifically whether individual members of the Taliban Militia in our custody are entitled to POW status, and it may be that some are actually entitled to it. In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions. I have no doubt we can do so here, with a relative handful of persons involved. Only the utmost confidence in our legal arguments could, it seems to me, justify deviating from the United States unbroken record of compliance with the Geneva Conventions in our conduct of military operations over the past fifty years. Your draft acknowledges that several of its conclusions are close questions. The attached draft comments will, I expect, show you that they are actually incorrect as well as incomplete. We should talk.”

Julian correctly states that the OLC views won the day. But only at first. This doesn’t take “the sting out” of the criticism of the OLC’s work. The OLC memoranda were to justify certain policies the Administration wanted to undertake; they were supposed to be “forward leaning.” They gave the Administration the fig-leaf it wanted. They were ends-driven as opposed to balanced analyses. (The ethical implications are considered by my colleague Robert Vischer, here.)

Since then, Taft and the State Department’s views have prevailed. The Supreme Court rejected law-free policymaking in regards to detainees. Our allies were appalled by the OLC views and argued strenuously that the U.S. not forget its great history of upholding the humane treatment of detainees as a matter of law. American public opinion recoiled at the revelations of the torture memos. And, in the end, the Bush Administration has repudiated the torture memos that followed-on the original memo finding the Geneva Conventions inapplicable.

Perhaps the Taft memo wasn’t “forward leaning” but it was right as matter of law and wise as a matter of policy. You ignore the legal protection of detainees and you get Abu Ghraib.

I am surprised that Julian is surprised that Taft mentioned that senior military officials favored applying the Geneva Conventions. Washington was abuzz with talk about the rift between the uniformed military attorneys and the civilian DOD and Justice Department lawyers. This had been widely reported before Taft’s speech. There were also many complaints by uniformed lawyers that they were frozen out of the decision-making process. There was probably no DOD memo because the DOD decision-making was controlled by civilian political appointees.

Finally, if Julian thinks it is an overstatement to say "How our government treats people should never, at bottom, be a matter merely of policy, but a matter of law," then I guess we just have a philosophical difference. We are allegedly a nation of laws. It is in remembering that that we avoid our worst mistakes, be it the wholesale detention of Japanese-Amerricans or the official wink-and-a-nod to torture.

William Taft knew that; perhaps now the OLC does as well.

Tuesday, April 05, 2005

Secretary of State Rice's Remarks at the ASIL

The transcript of Secretary Rice's comments at the Annual Meeting of the ASIL have been posted online here.

Former Legal Adviser Taft Goes Off the Reservation

The WSJ reports today (reg. req'd) on a speech from last month by former State Department Legal Adviser William H. Taft IV criticizing the U.S. government's policy on detentions in Guantanamo Bay. Here are the highlights:

There is no basis in the law of war, criminal law or human-rights law for such practices [in Guantanamo]. Nor is it tenable after the Supreme Court's rulings last summer to assert that detainees have no legal rights of any kind, that they may not contest with the assistance of competent counsel of their own choosing the legal basis of their detention, that the government has complete discretion to determine the conditions of their detention, or that whether they are treated humanely or not is a question only of policy....How our government treats people should never, at bottom, be a matter merely of policy, but a matter of law.

The article further quotes Taft as saying "senior military officials agreed that the treaty should be followed 'without qualification,' but Justice Department lawyers insisted on ruling that the Geneva Conventions "did not apply to al Qaeda as a matter of law and to qualify the commitment to apply them as a matter of policy to situations where this was 'appropriate' and 'consistent with military necessity.' "

I don't know exactly what to make of this airing of the administration's internal deliberations, which is always somewhat suspect because Taft obviously has an interest in bolstering his reputation. But, if the reporting of Taft's statements is accurate, and Taft himself is stating the truth, they lead me to a few comments:

(1) Given that the White House was getting all this contrary advice from Taft, it actually takes some of the sting out of the critics of the Justice Department's Office of Legal Counsel's work here on this question. The Justice Department prevailed, but it wasn't because the Justice Department gave misleading or deceptive advice. Rather, it seems to me they gave their considered views, and the State Department gave their considered views, and Gonzales made his choice between them.

(2) I am a bit surprised to hear Taft claim that unspecified "senior military officials" supported applying the Geneva Convention without qualification, even to Al Qaeda. Why such a Defense Department legal memo has never surfaced makes this claim rather suspect to me, since DOD lawyers have every incentive to leak such a memo. Rather, I bet the military was divided on this question, and didn't have a uniform view on this question.

(3) I think Taft is way overstating his case when he declares that "How our government treats people should never, at bottom, be a matter merely of policy, but a matter of law." Actually, I think the reverse is just as often the case, that is to say, that how our government treats people should often be a matter of policy, and not a matter of "law" precisely because law is often inflexible and ill-adapted to changing situations. In many, many instances, policy makers are given lots of room for discretion by the law, and I would want our policy makers to act humanely and decently even if the law does not require them to do so. That is, officially at least, the current administration's policy even though there is some evidence that it is not really living up to its own policies.

Posner and Goldsmith on "The Limits of International Law"

The day before last week's ASIL meeting, AEI hosted an excellent panel discussion of the book "The Limits of International Law" by Professors Eric Posner and Jack Goldsmith. A transcript of the discussion is here. The Posner/Goldsmith thesis is based on rational choice: States should engage in international law making or agree to comply with pre-existing international legal norms in order to promote their national interests. Posner and Goldsmith distinguish their theory (only slightly, perhaps) from international relations realists by recognizing that national interests can be broader than just maximizing power or security. But at bottom, Posner and Goldsmith posit that international law is an expression of states acting rationally to promote to their national interest. Any cooperation among states is a byproduct of that rational act. This is an intuitive and very useful framework for explaining both why states enter treaties and why they may later breach them. But it has limits.

While Posner and Goldsmith claim that they are not suggesting that international law is meaningless or that international law does not exist, that is not an unreasonable conclusion to draw from their thesis. As David Scheffer pointed out in the discussion, if the claim is that states only act rationally in their national interest, and if a state decides that international law is not part of its national interest, is there international law? Douglas Ginbsburg had a different twist: if international law is nothing more than states acting in their rational self-interest, it appears to be some sort of device through which politics can be carried out, but does not have the full attributes of law.

Further, the thesis is limited by its necessary reliance on a rather monolithic view of "national interest." Interestingly, this critique comes from both the right and the left. The right takes seriously the moral underpinnings of liberal democracy and believes expression of that morality has a place, for example, in the United States' national interest. For the liberal institutionalists, the rational choice hypothesis fails to consider the complexity of state interests and the various constituencies (including minority views) that are reflected in a state's participation in international legal regimes. And it also fails to consider how international law and institutions themselves are integrated into and affect notions of self-interest at the domestic level.

That said, the book is a useful framing device through which to test and examine other theories of international law.

Why the U.S. Can't Win: Sudanese Protest ICC Referral

Sudan's government is (not surprisingly) refusing to hand over alleged war criminals to the ICC, as it is required to do per the U.N. Security Council's resolution last week. Indeed, according to the BBC, tens of thousands of Sudanese are protesting the U.N. referral and even directly blaming the U.S.

"We are coming here to say to America 'no' to these orders. We are not people who have to listen to orders from anybody except the Sudan," one demonstrator said.

This is ironic, to say the least, because the U.S. has been pummelled for weeks by the European and U.S. media for blocking an ICC referral in the first place. Having finally relented, they will no doubt be blamed for whatever the ICC ends up doing in Sudan as well. Sometimes, it's no fun being the world's only superpower...

Monday, April 04, 2005

Justice Ginsburg and Secretary of State Rice at the ASIL; More on Citation to Foreign Sources by U.S. Courts

As many of you may already know, Justice Ruth Bader Ginsburg gave the keynote address at the American Society of International Law’s Annual Meeting. This, in and of itself, is worthy of special note. However, on top of this, Secretary of State Condoleezza Rice introduced the Justice with a short speech covering the relation of the rule of law to the expansion of liberty around the world. See the New York Times article about the speeches here.

Justice Ginsburg’s speech focused on the debate over citing to foreign law in court opinions. Noting that judges are “free to consult all manner of legal commentary,” she gave a spirited defense of the practice of reading and citing to foreign opinions. In part, her reaction to the criticisms of citing to foreign law can be described as that it is much ado about nothing or perhaps much ado about very little. No U.S. judge citing to foreign law claims that it is in any way binding; quite simply it is a matter of looking to what other legal experts facing similar problems have done. She discussed cases from the Supreme Court and from the circuit courts that referred to foreign law.

Justce Ginsburg was clearly nonplussed by criticism that citing to foreign law is like going to a cocktail party and picking and choosing who you talk to. Both sides to a litigation can draw analogies to foreign law (or other non-binding material, for that matter)… if it seems reasonable, if we can learn from it, then why shouldn’t we be able to look at it, if we choose to? As for the argument that other countries have learned from us in how to build constitutional democracies, thus it would be backwards for us to look to them for ideas, she paraphrased Judge Patricia Wald in concluding that “wise parents know how to learn from the experiences of their children.”

I agree that this debate is really much ado about very little. Nonbinding material ranging from literature to the writings of political philosophers to the decisions of courts from other states of the U.S. to the decisions of foreign courts are referred to by judges from across the political spectrum. It is hard to make an argument that one non-binding source can not be allowed (foreign judgments) while most or all the others can. Justice Scalia, to his credit, argues that his view of foreign law is based on his interpretive originalism that would be hostile to any of these materials being included. Very few judges take their interpretive philosophy to quite this extreme, however. (and some have argued that not even Scalia consistently follwos his own rule.) So, then, what is a principled reason for allowing some non-binding material but not other such material? And, as Justice Breyer had previously queried in a discussion with Justice Scalia, does it really make sense that a Justice should be allowed to read such material but, even if it in all honesty affected how they approached the problem, they should not be allowed cite to it in their opinion?

State Department Briefing on the ICC and Darfur; Some Thoughts on ICC Jurisdiction

Following is an excerpt from the State Department press briefing from April 1st in which Richard Boucher discussed Security Council Resolution 1593 (transcribed, along with state comments, here), referring the Darfur situation to the ICC (see also the press release from the ICC itself, with links to other resources, here).

Some of the questions focus on whether the Security Council referral is a novel basis for jurisdiction (see, especially the part I highlighted). While the Q&A on this was a bit muddled, I think the short answer is that such a referral is not a novel legal theory—it was contemplated in Article 13(b) of the Rome Statute. (I consider this further below the press briefing excerpt) The Security Council has always had significant powers under Chapter VII of the UN Charter, which covers threats to the peace. What we see here is how the Security Council may work together with the ICC to address such matters.


QUESTION: Can you explain why it is that the U.S. Government believes that citizens of Sudan, which signed the Rome Statute, but has not ratified it and therefore is not a state party to it, should be subject to its jurisdiction, when the crux of the American argument is that U.S. citizens should not be subject to its jurisdiction because the United States is not a state party to it?

MR. BOUCHER: You might understand that I think this is the third time you’ve asked this question today, and so my answer might be similar to the answer that previous officials, including the Secretary of State, have given to you to this question.

The United States believes very firmly in accountability for the crimes that have been committed in Sudan. We thought it was very important that the UN Security Council take action. As you know, we have explored, along with some of the Africans who have supported the idea, of an African-led tribunal that can do that, but all of us keeping to the fundamental point that it is vital to ensure accountability.

This is a Security Council action. This is an action where the Security Council has determined the crimes that have been committed need to be prosecuted, and the Security Council has determined what the appropriate forum is for those prosecutions. To that extent, it is similar to some of the other decisions that the Security Council has made; it's just in a different court.

Second of all, I think the circumstances in Sudan, Darfur in particular, have been extraordinary and need to be addressed. Other states that are not party to this, including the United States, have appropriate judicial and legal vehicles to address crimes that might have occurred. The United States itself is in the process of prosecuting crimes or allegations against Americans who might have committed abuses in Iraq. And we’re demonstrating, I think, to the world now that we do follow up on our own on those things.

No such mechanism exists in Sudan. We explored whether a mechanism like that could be established in Africa. There wasn’t sufficient support for that. And there is a mechanism that many members supported in terms of doing that before the International Criminal Court. And so we abstained because we think it is very important that these crimes are prosecuted.

QUESTION: Did the Security Council stay within the rules when it did what it did last night? In other words, there’s a treaty here. I don’t think that the Security Council has the power to go beyond what the treaty says. Was there an overreach by the Council in this regard?

MR. BOUCHER: I think first of all, that would have to be a question the treaty would have to – treaty members, parties, would have to try to answer. If there is any legal question, I have not seen one raised. Certainly, the nine members of the Council, I think it is, or parties to the treaty, didn’t think so.

We have -- I mean, it was important to us in this resolution to achieve two things, and that we did achieve: one was accountability for the crimes, and two was protection for Americans who are not party to the treaty.

The fact that this was done, and I think you’ll see this in the explanation of the vote we gave in the UN and other statements that we have made, the fact that this was done by the Security Council is important to us, but nonetheless, we still have our fundamental objections to the Rome Statute and the International Criminal Court, and therefore, we wanted to build in certain protections. Those are built in for nationals of states not party. The resolution also recognizes that absent the consent of the state involved or a Security Council referral that persons of states not party to the Rome Statute should not be subject to ICC jurisdiction.

The resolution also takes note of Article 98 agreements within the scope of the Rome Treaty. As you know, we signed a number of those, I think over 100 -- or 99, sorry, Article 98 agreements the United States has already entered into.

QUESTION: Do you have one with Sudan?

MR. BOUCHER: No. The other thing that is recognized is that none of the expenses incurred in the referral on the prosecution would be borne by the UN members, but rather they'll be borne by parties to the Rome Statute. So in that way it protects, I think, our position on the Rome Statute, the International Criminal Court, but fundamentally what it achieves is something very, very important to all of us, and that's it achieves accountability for the crimes of Darfur.

QUESTION: But let me follow up. You note that the resolution states that states that are not party must give their consent; therefore, if Sudan does not give its consent, and I believe it has not yet, no Sudanese citizen could be tried and therefore there would be no accountability for Sudanese citizens at all. Why --

MR. BOUCHER: Well, I --

QUESTION: No -- may I finish my question?

MR. BOUCHER: It's based on a false premise. I can stop you there.

QUESTION: Oh? How?

MR. BOUCHER: I just said absent consent or referral by the Security Council --

QUESTION: Excuse me --

MR. BOUCHER: In this case, we have referral by the Security Council.

QUESTION: Excuse me, but to go to the rest of the question -- and forgive me for that error -- why should not Sudan continue to argue what is essentially your position, that because they're not a state party their citizens shouldn't be subject?

MR. BOUCHER: Because, first of all, Sudan doesn't have a mechanism to show that there can and will be accountability for these crimes; and second of all, because the international community has looked at this situation and decided that this is the appropriate way to ensure prosecution of some horrible abuses and crimes, crimes that we have called genocide.

QUESTION: But, Richard, doesn't this set precedent for the future in that, you know, any country that is not a party to the ICC at some point may be referred by the Security Council to the ICC? And there are certainly plenty of countries in the world that don't have the internal mechanisms to deal with such an issue, like Zimbabwe, for example, or there are several others that I could name.

MR. BOUCHER: As I said, the resolution itself recognizes that absent consent from the state or referral from the Security Council that parties, persons from states that are not a party, won't be subject to this. But under those circumstances, they could be. So it's -- yes, it establishes a practice. As I think many of you know, one of our fundamental problems the United States has had, going back to the previous administration, I would add, with the Rome Statute has been the lack of Security Council oversight to begin with.

QUESTION: And just one more. Do you have a reason to believe that Americans could be accused of involvement in crimes in Darfur, which is why you wanted to have this protection clause?

MR. BOUCHER: No, absolutely not. We have -- I think if you go back to Security Council resolutions, if I remember correctly, Liberia might have been the first, but there have been several Security Council resolutions that one way or the other have dealt with this kind of protection, it's been fundamental to the United States to achieve that when we deploy people overseas. But that in no way implies that we think Americans are committing crimes. And if they did, of course, they would be subject to American prosecution.


Following are two of the key articles (emphases added) on jurisdictional issues from the Rome Statute. Note that the requirement of being a Party to the ICC statute, discussed in Article 12, does not apply to the Security Council referral mechanism in subsection (b) of Article 13. Reading these articles together, one may see that the Security Council may, at its discretion, use the ICC as its mechanism of investigation and adjudication in cases regardless as to whether the states involved are parties to the Rome Statute. While the Bush Administartion seems to prefer closer oversight of the ICC by the Security Council and, as such, this referral can be seen as consistent with US comments regarding how the ICC could best do its job (with prior approval of the Security Council rather than independently), this can also be seen as a cause for potential concern: the reinforcement of the idea that nationals who are neither from State Parties nor operating within a State Party can nonetheless (with Security Council approval) be tried by the ICC. (Though of course there is little real concern that nationals of the U.S., U.K., Russia, China, or France would ever be tried as their country could veto any such referral.)

Article 12
Preconditions to the exercise of jurisdiction

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Article 13
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which 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; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.