Thursday, March 16, 2017

“The High Costs of Abandoning International Law” and Implications for the International Criminal Court: A Response

The Boston Globe recently published an article by Jeffrey D. Sachs titled “The high costs of abandoning international law.”  Sachs explains the role of international law within the United States, and his points are particularly striking when examining the United States relationship with the International Criminal Court (ICC). 

Fact Check
While the article provides useful insights, there are two errors regarding the International Criminal Court in Sach’s presentation. First, the treaty that established the International Criminal Court is the Rome Statute (1998), but the article implies that the name of the treaty is the “International Criminal Court (1998).” Second, the US did not vote “against the ICC in the UN General Assembly.” The vote on the ICC occurred at the Rome Conference, not the General Assembly. 

Following a Principle of Jurisdiction
The article emphasizes a section of the Trump Administration’s draft trade policy agenda which says:
“Ever since the United States won its independence, it has been a basic principle of our country that American citizens are subject only to laws and regulations made by the US government – not rulings made by foreign governments or international bodies. This principle remains true today.”

Yet, it has been a long-established principle of international law that anyone who commits a crime in a state, can be tried under that state’s jurisdiction. The United States has used this understanding of jurisdiction to prosecute those who are not American citizens visiting the United States, and other states have exercised jurisdiction over Americans in their territory. Hence, if abroad, American citizens are subject to the laws and regulations of the state they are in, regardless of what American laws dictate. This principle of jurisdiction has not typically been one in contention.

The dismissal of this principle is not new. As Sachs acknowledges, many politicians reiterated this misunderstanding about international law. In fact, they relied on this incorrect notion of a jurisdictional clash in many of their explanations as to why the US would not ratify or accede to the Rome Statute. American politicians have repudiated the idea that if American citizens are responsible for crimes under the Rome Statute’s jurisdiction in the territory of state parties to the ICC, they can fall under the ICC’s jurisdiction. This idea is not out-of-step with how states have exercised jurisdiction for centuries. 

In American Interests
The article also examines the notions of “US primacy”  and “American actions alone.” Both ideas foster anti-multilateralism, arguing that the US does not need international cooperation to secure its interests. However, the article notes that various international treaties demonstrate the necessity of international legal agreements for our society to function, and for US interests in “America’s security and economic interests – in the sea, or the environment, or armaments” to be maintained. There are a plethora of regulations and institutions established under international law that benefit Americans. For example, the international aviation law allows planes to fly without running into each other, international maritime law allows ships to carry cargo between states and international postal law allow letters to be delivered. These branches of law have created institutions and regulations that facilitate these functions, which further the interests of the United States. The United States must remain a part of these treaties for our standard of life to be maintained. In other words, the US cannot act alone in the world, if it wishes to maintain its interests. Global problems exist that impact Americans and require global solutions.

One of these solutions is the ICC. It is in the United States’ interests that justice prevails and that the world brings those responsible for atrocities to justice. US practical support for various ICC cases, its War Crimes Rewards Program and its Security Council vote for referral of Libya to the ICC evince these interests. The United States cannot procure global justice, peace and security alone. Nor is it in our interest to try doing so.

History of Resistance from Politicians, not the Public
The article also correctly acknowledges that these myths are not merely a problem of the Trump Administration. Recent US history features resistance to international law, and its refusal to accede to the Rome Statute is invariably a symbol of such opposition. However, while politicians might not support the Rome Statute and other international treaties, several treaties, including the Rome Statute enjoy very broad public support in the US. In fact, a poll by the Chicago Council on Global Affairs found that 72% of Americans thought the US should “participate” in the Rome Statute, and this is not partisan support. 65% of “core Trump Supporters” agreed that the US should support the ICC. This public support has persisted despite the failure of politicians to ratify or accede to these treaties.

Written by Taylor Ackerman

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