International Law

The BBC has been following the talks called by President Bush on climate change, and has reported that Condoleezza Rice has said climate change is a real problem, and world leaders should forge a new global consensus on tackling it.

One might of course be skeptical of Bush’s motives (whether this is purely a political play) and one awaits the probably inevitable focus on voluntary and/or cosmetic cuts or market-based measures. But perhaps this at least shows that some in the US are starting to realize that at least being a part of the negotiation, or perhaps starting a separate set of negotiations in which one frames the debate, may be a more viable way of interacting with areas of burgeoning international law (and increasing domestic pressure), such as climate change. One thing for IL scholars who might not like some of the US or any other major power’s positions but constantly call for more international legal engagement by those same powers, is to be careful what you wish for. Simply having “more” engagement by governments does not mean they will take the positions one hopes for or even use the same forums (as Bush’s sidestepping clearly shows) and in some ways perhaps international regimes (such as the ICC, Kyoto, etc.) were actually “helped” by being largely dismissed by the US. Other regimes in which major countries opt out may also have been helped. While IL scholars or especially advocates for various causes (human rights, environment, indigenous rights, etc.) often call for immediate worldwide adoption of various principles, sometimes having smaller venues helps to develop more organized and internally consistent regimes, some supporting cases, some domestic legislation, etc. to the stage in which major powers are forced to get involved or “miss the boat”.  But of course without such public and worldwide calls, perhaps the regimes would remain permanently marginal. 

In any event, the interplay between “involvement” by major powers in IL and whether this is “good” or “bad” for one’s cause is not as simple as it first appears.

Harvard International Review forwarded an interesting and opinionated article on “The End of Exceptionalism in War Crimes: The International Criminal Court and America’s Credibility in the World” by David Scheffer, Richard Cooper and Juliette Voinov Kohler, strongly advocating that the US join the ICC.  It is a very internationalist/moral/human rights call, noting that “[t]he United States needs the ICC to help restore its global credibility, discipline its own decision-making, and strengthen judicial intervention against atrocity crimes.”  It also takes a broadly negative view of US international law/foreign policy of late which occassionally hurts the specific arguments as they are couched within such broad-brush strokes about the Bush administration’s various positions. 

There are more “realist” articles out there arguing that the ICC is continuing with or without the US and the US might be more effective “within” the system and noting that US systems are adequate to address war crimes violations by US leaders and soldiers so no US soldier would be before the ICC.  The article duly notes these arguments, especially that the US should be involved or lose the ability to influence changes, including during the Rome Statute review process in 2009.  But the article takes a direct stand on potential US liability, writing that “[n]o nation should ignore its duty to bring war criminals to justice or otherwise shield its own leaders or soldiers from charges of genocide, crimes against humanity, or war crimes” (emphasis added) and implying that the ICC should take cases of US actions if the US fails to prosecute. 

The article rightly notes that this will remain a hot topic, especially if the stance really is that US soldiers and leaders might ultimately be tried in such settings.  The timetable it sets up may be unrealistic, but certainly the debate will continue as 2009 approaches. 

Thank you for the forward.