Swans Commentary » swans.com December 19, 2011  



Perspectives: A Review of 2011


A Year Of Living Lawlessly


by Aleksandar Jokic and Tiphaine Dickson





(Swans - December 19, 2011)   Those who believed President Obama's pledge made two days after his inauguration to close Guantánamo within one year were disappointed. Those who were distracted by Obama's musings about "just war," the U.S. being "a standard bearer in the conduct of war," and "America's commitment to abide by the Geneva Conventions" in a most unlikely Nobel Lecture were soon provided sobering moments courtesy of, among other things, the extrajudicial killings of Osama bin Laden; Anwar al-Awlaki, an American citizen; and the lynching of Muammar Muhammad Gaddafi to the point that a demand to revoke Obama's evidently premature Peace Prize seemed unsurprising. When it comes to expectations of meaningful change or successes in foreign policy under President Obama's leadership, the realization is that he's come up mostly empty.

But none of this seemed, in the main, that terribly upsetting until the Senate's recent attempt to introduce provisions allowing the US military to detain American citizens without charge, perhaps finally bringing home, so to speak, James Madison's great caution against foreign military entanglements: "The means of defense against foreign danger historically have become instruments of tyranny at home." The administration threatens to veto the appropriations bill containing the military detention sections, but the veto language seems as concerned about the president losing "flexibility" and discretion in the prosecution of the endless, protean War on Terrorism as it is with the actual substance of a law that would allow the military to (one is tempted to employ capital letters) detain citizens without charge.

However, on another front -- International Justice -- things appear to be going exactly as advertised, and this became very clear in the course of the year under review. The understanding that the International Criminal Court (ICC) is to be used simply as a tool to "advance U.S. interests and values" is explicitly spelled out in Obama's 2010 National Security Strategy:

International Justice: From Nuremberg to Yugoslavia to Liberia, the United States has seen that the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs. The United States is thus working to strengthen national justice systems and is maintaining our support for ad hoc international tribunals and hybrid courts. Those who intentionally target innocent civilians must be held accountable, and we will continue to support institutions and prosecutions that advance this important interest. Although the United States is not at present a party to the Rome Statute of the International Criminal Court (ICC), and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the ICC's prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law. (National Security Strategy, May 2010, p. 48).

While many may have suspected that the US policy towards ICC was one of asymmetrical engagement by a non-member state yet capable of steering and controlling what the court does to further its interests, it is still surprising to read it so clearly spelled out in a manner that in no way attempts to conceal, perhaps using diplomatic language or euphemisms, that the US official policy is one of instrumentalizing international justice. It is even more unexpected to watch this play out fully in less than a year since its most explicit announcement, and observe the nearly total subordination of the Office of the ICC Prosecutor to the interests of the U.S.

Last year's full-throated US endorsement of Security Council Resolution 1970, referring an investigation to the ICC Prosecutor "considering," as the UN-speak goes, "that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity" might lead those with a memory of recent history to conclude that US hostility to the ICC had somewhat decreased, replaced by a spirit of cooperation. Yet, as the National Security Strategy makes clear, support for ICC prosecutions is determined by whether such cases advance US "interests and values," and in accordance with US law.

The last point is where things become fuzzy. The law in question is the American Servicemembers Protection Act (ASPA), a 2002 bill that put meat on the bones of the Bush administration's "unsigning" of the Rome Statute, signed in extremis by President Clinton, but never submitted to the Senate for advice and consent. The ASPA, famously nicknamed the "Hague Invasion Act," to reflect the extraordinary powers granted by Congress to the president to use "all means necessary" to secure the release of American citizens in the unlikely event that they would have the misfortune of being detained by the ICC, also prohibits the contribution of any appropriated funds to the ICC. It is also the source of the relatively brief self-foot shooting period when the U.S. denied development assistance as well as military training and cooperation to states having ratified the Rome Statute, leading to the eventual repeal of that particular provision.

It is in the Dodd amendment of the ASPA, however, that the mother of all loopholes appears, as it states that "nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of al Qaeda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity." Still, according to the ASPA, intelligence and law-enforcement information may not be shared with the ICC Prosecutor presumably no matter how much any given case may advance US interests and values. And yet, this last year was witness to a curious twist, requiring a bit of legislative forensics to unravel.

First, note Article 8 of UN Security Council Resolution 1970: "none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily." So veto-holding non-parties to the Rome Statute can vote in favor of the resolution, and cause the ICC prosecutor to take up an investigation against the leaders of a non-party state, and make member states pay for it! The technique has at least the virtue of being -- let us again cite the National Security Strategy -- "consistent with the requirements of US law." This free-rider provision first appeared when the U.S. abstained from voting on a similar resolution to refer investigations to the ICC prosecutor with respect to events in Sudan. The US representative expressed pleasure that the Security Council had recognized the "principle" that non-party members would be exempted from contributing to the proceedings whose creation they enabled against non-party members. To translate: impunity, cost-free, reflecting the extraordinary responsibility of the United States of America in peacekeeping operations around the world.

On October 14, 2011, President Obama notified Congress, pursuant to the War Powers Act, that 132 combat-equipped Special Forces had been deployed to Central Africa as advisors. Where in Central Africa and why? In "LRA-affected areas" -- that would be Northern Uganda, the Central African Republic, and the Democratic Republic of Congo -- and pursuant to Lord's Resistance Army Disarmament and Northern Uganda Recovery Act of 2009 (the LRA Act), signed by President Obama in 2010. Section 4 of the LRA Act directs the president to develop a strategy to implement the law, which was transmitted to the House and to the Senate on November 24, 2010. (1) The strategy refers to the ICC warrants against Joseph Kony and the leadership of the Lord's Resistance Army, (2) and states that the U.S. "will continue to be supportive of ICC cases against the LRA leaders." (3)

Implementation hearings were held before the House Committee on Foreign Affairs, and it was confirmed that this was a "kill or capture" operation targeting Joseph Kony, in particular, though it wasn't clear to all members of the powerful house committee who precisely that was, or what, specifically, the Lord's Resistance Army actually stood for. A cringe-inducing moment in the hearings featured Dana Rohrabacher (R-CA) asking the Pentagon witness to confirm his shaky grasp of what the troops were actually doing, and to whom: "The Lord's Resistance Army is an Islamic group, correct?" This is the level of scrutiny given to this underreported deployment, at an estimated cost of "tens of millions" (4) and for an unknown period of time (5) in a "kill or capture" operation for which there will be no international accountability. In March 2011, Stephen Rapp, the US ambassador-at-large for war crimes, stated that: "The United States is prepared to listen and to work with the ICC and go through requests that the prosecutor has," adding that "there may be obstacles under our law. But we're prepared to do what we can to bring justice to the victims in the Democratic Republic of Congo, in Uganda, and Sudan and in the Central African Republic." (6) Adam Branch, professor of political science at San Diego State University, argued -- well before this latest deployment that justice and rule of law considerations militate against entrusting the enforcement powers of the ICC to a single state -- one that has a military and political agenda in Africa, where all ICC cases have focused -- that is itself above the law. (7)

American lawmakers didn't seem inordinately upset with the turn the little-known LRA implementation had taken, or whether it violated the ASPA, or whether it might unravel what was left of the frayed commitment that the U.S., as a beacon of justice and liberty in the world, doesn't set forth to execute people. That is at least how one could be forgiven for understanding Chairwoman Ros-Lehtinen's (R-FL) comment, in concluding the hearing on the implementation of the Lord's Resistance Army Disarmament and Northern Uganda Recovery Act, that perhaps "soon, Joseph Kony will meet his maker."

Former president of the Ivory Coast Laurent Gbagbo went to meet his ICC judges in the waning days of November, transported in an official plane of the Republic of Ivory Coast, after having been detained without court appearance or charge in a residence in the town of Korhogo since last April. President Gbagbo's expedited transfer to The Hague (nearly simultaneous with his indictment by the ICC only on November 28, 2011) was welcomed by the U.S., though surely the U.S. would not wish such a transfer of its own political leadership or servicemembers. As the ICC prosecutor vows to continue investigations and gather evidence against Gbagbo, one can be forgiven for developing sympathy for US skepticism towards a judicial body apparently still building a case. His lawyers argue that his initial arrest and continued detention were illegal, and that the ICC, hence, cannot condone or confirm such illegality; they also note that upcoming elections in the Ivory Coast make the timing of the transfer to The Hague suspect. The ICC move has been described by another of Gbagbo's counsels as contrary to the interests of national reconciliation, and potentially further exposing members of Gbagbo's still legal party to further threats of harassment and physical harm. Gbagbo has sued the French military for having attempted to assassinate him, an account he described in an interview given shortly before his arrest and transfer to The Hague.

Clean distinctions between politics, law, and war were perhaps never entirely possible to make as clearly as we would have hoped, but some distinctions, like the one between a battlefield and not a battlefield are urgently meaningful if the only thing left between American citizens and the possibility of unlimited military detention without charge is whether or not they are captured in the battlefield on a hopeful interpretation of Hamdi v. Rumsfeld. But even that intuitive frontier risks erosion, as Jeh Johnson, counsel for the CIA, speaking at an American Bar Association National Security panel on December 3, proclaimed that he found that the distinction between battlefield and non-battlefield was "growing stale." When the administration's memo-writers opine that time-honored concepts with serious implications have best-before dates, and when the US Congress can do no better for American citizens than pass an amendment based wholly on the hope that courts will interpret the law on the side of habeas corpus and maybe civilian proceedings, while they nonetheless continue, in the grand tradition of legicide, to grant wide swaths of unprecedented power to the executive branch, it is time perhaps to think a bit more carefully about the assumption that national security, when secured by actions abroad, has consequences: for those directly affected by bombs, instability, and economic collapse, but also for those in whose name "the means of defense against foreign danger," to paraphrase Madison, have indeed "become the instruments of tyranny at home."


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About the Author

Aleksandar Jokic is a professor at Portland State University where he teaches courses in moral philosophy and international justice. Tiphaine Dickson is an instructor in the Political Science Division of the Mark O. Hatfield School of Government at Portland State University, where she is currently also a PhD student. She received her LL.B in 1993, and acted as a criminal defense attorney, later specializing in international criminal law, and representing accused at the ICTR and consulting in ICTY cases. She has authored a number of articles on international criminal tribunals.   (back)


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1.  President Barack Obama, "Strategy to Support the Disarmament of the Lord's Resistance Army," pursuant to section 4 of the Lord's Resistance Army Disarmament and Northern Uganda Recovery Act of 2009 (the LRA Act), p. 11-172.  (back)

2.  Id., p. 4.  (back)

3.  Id., p. 13.  (back)

4.  House Committee on Foreign Affairs, Deployment of U.S. Forces in Central Africa and Implementation of The Lord's Resistance Army Disarmament and Northern Uganda Recovery Act, October 25th, 2011, schedule and webcast of hearing available at http://foreignaffairs.house.gov/hearing_notice.asp?id=1366; Resolve, "White House Announces Decision to Deploy Military Advisors in LRA-affected Areas," http://www.theresolve.org/blog/archives/3071030503, accessed November 25, 2011; "Testimony by Obama Officials Before Congressional Hearing Shows Need for More Clarity," http://www.theresolve.org/blog/archives/3071030818, accessed November 25th, 2011.  (back)

5.  John T. Bennett, "Pentagon says military deployment to Uganda 'will not be open-ended,'" October 25, 2011, The Hill, http://thehill.com/news-by-subject/defense-homeland-security/189625-pentagon-uganda-mission-will-not-be-open-ended?page=2, accessed November 26th, 2011.  (back)

6.  George Lerner, "Ambassador: US moving to support international court," CNN US on-line, www.cnn.com/2010/US/03/24/us.global.justice, accessed November 26, 2011.  (back)

7.  Samar Al Bulushi and Adam Branch, "AFRICOM and the ICC: Enforcing International Justice in Africa?," Pambazuka, May 27, 2010, available at: http://www.pambazuka.org/en/category/features/64752, accessed November 25, 2011.  (back)


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Published December 19, 2011