Balkinization: A Bully Using Threats About Money is Still a Bully

A Bully Using Threats About Money is Still a Bully

Brian Tamanaha

The United States proudly holds itself up as a country that abides by the rule of law. And of course this country is against genocide and other crimes against humanity. You would think, therefore, that the United States supports the International Criminal Court. The Clinton Administration did, but not the Bush Administration. Correct that: the Bush Administion is not against the ICC as such, only against the possibility that it might be used to prosecute Americans.

The objection is not quite that Americans would never engage in such reprehensible acts (recent war-prison events would make that claim a tough sell right now). Rather the objection is that other countries might use ICC proceedings against Americans for political retribution. Administration officials admit that the risk is small, especially since the threshold for ICC jurisdiction is high (the conduct has to be beyond awful), and would not kick in unless the home country refuses to prosecute.

Notwithstanding our objections, the ICC was established--now up and running at the Hague--with the agreement of 139 countries. To avoid the ICC, the US has pressured other countries to sign bilateral agreements in which they promise to not cooperate in any ICC prosecutions involving Americans. According to a NY Times report, about 100 countries have signed, some more willingly than others. For the less than willing, our main "encouragement" has been to withhold US aid from countries that refuse to sign such agreements. This bargaining tactic is most effective with poor countries, a number of which have caved owing to their need for the money. Others still hold out, refusing to sign, suffering the consequences, insisting that supporting the ICC is worth the pain visited by losing the aid.

One can be sympathetic to the Bush Admistration's desire to protect American citizens (no matter how small the risk), but still find our tactics, well...embarassing, unworthy of a great nation, poor form, just plain bullying. It's our money, and the're not entitled to it (as an unapologetic Congressman astutely pointed out), but this is just too underhanded of a means to our end. Worst of all, it sends a clear message about how money and power can be used in cynical ways to evade the law.

Posted 7:05 PM by Brian Tamanaha [link]

Comments:

Brian - there is a good discussion on this point over at Opinio Juris if you or your other readers are interested further in this debate.

# posted by

Not my real name : 8:21 PM

Apologies, and the link is:

http://lawofnations.blogspot.com/2005/08/revolting-against-article-98-icc.html

Cheers all

# posted by

Not my real name : 8:21 PM

I agree that the Bush Administration's argument to the claim that the United States should pressure countries into signing these agreements is unsound. That argument, I take it, runs like this:

(1) If there is a risk that other countries might use ICC proceedings against Americans for political retribution, then the United States should take whatever measures that, short of opposing the existence of the ICC, minimize that risk.

(2) There is a risk that other countries might use ICC proceedings against Americans for political retribution.

(3) There is a measure that, short of opposing the existence of the ICC, minimizes that risk: Pressuring other countries to sign bilateral agreements in which they promise to not cooperate in any ICC prosecutions involving Americans.

(4) Therefore, the United States should pressure other countries to sign bilateral agreements in which they promise to not cooperate in any ICC prosecutions involving Americans.

There are several problems with this argument. (1) is too broad: it calls on the United States to take *whatever* measures minimize the risk--even if those measures are immoral or impolitic. (2) is unproved. (3) is unproved; there might be other measures that would lessen the risk more than pressuring countries to sign these agreements.

So far we agree. But I'm a bit puzzled by your opening inference. That one runs:

(1) The United States holds itself up as a country that (i) abides by the rule of law and (ii) opposes all crimes against humanity.

(2) Therefore, the United States should support the International Criminal Court.

Now, since that's a non sequitur, I presume that you had in mind a major premise which you omitted to write, something like:

MP. Any country that (i) abides by the rule of law and (ii) opposes all crimes against humanity should support the International Criminal Court.

When you combine MP with premise (1), the conclusion in (2) follows validly. But why should we think MP is true?

Tom Donahue.

# posted by

Tom : 10:59 AM

Not giving them aid if we don't like what they are doing is not a threat.

You might call it a bribe - do what we want and we will give you some money.

But not a threat. They don't have a right to US taxpayers hard-earned money. If we are going to give them some money, then we should get something in return.... And don't kid yourself that this is going to starving orphans. Most aid ends up in Swiss bank accounts.

# posted by

Zendo Deb : 11:32 AM

This is, of course, not all that different from companies that require customers to sign away rights as a condition of doing business. It's always voluntary, but the immediate costs of failing to volunteer make it difficult for any but the wealthy to maintain their rights.

# posted by

rmenglish@gmail.com : 1:17 PM

I am with Zendo Deb and taking it a step farther. There is no nation in the world with a higher ethical or moral standard than ours. We set the standard. We do not need the pitiful remnants of feudalism, communism and imperialism, and the present communist, fascist nad islamo-fascist kleptocracies to have anything to say about how our military conducts itself.

# posted by

nk : 9:36 PM

P.S. "Worst of all, it sends a clear message about how money and power can be used in cynical ways to evade the law."

What law? Please think about it and do not take it as merely provocative. To what extent did we, free individuals and American citizens with all the rights and privileges conferred under our Constitution, participate in the creation of the international criminal court?

# posted by

nk : 9:51 PM

I would agree with Tom that I think the post jumped one step. I say this as someone who supports the ICC. It's not self-evident though as someone who basically shares my political philosophy and distaste for GWB but still doesn't trust the ICC would tell you.

Also, Clinton (as I recall) kinda left some wiggle room. Now, I think this better than the current situation, and it suggests ways we can protect ourselves (as the article cited notes, there are others) besides the current misguided heavy hand, but it wasn't full fledged support either.

# posted by

Joe : 1:50 AM

Sorry, but could someone explain to me why the ICC was a good idea to begin with?

Also, the post ignored the fact that one does not need actual horrible crimes for the ICC to claim jurisdiction, only alledgations.

# posted by

Shalom : 5:00 PM

Exactly what "law" are you saying we'd be evading? The ICC is a court of no jurisdiction, of no subject matter, of no territory, and of no law. It is a kangaroo court by which the international socialists of the UN can skewer running dog capitalists around the world for political gain.

# posted by

Mike Lorrey : 6:39 PM

# posted by

Mike Lorrey : 6:40 PM

Oh, and btw: I don't care how embarrassed or guilty you feel. It ain't their money, its ours, and we can choose to not play their game whenever we want. If they want our money, they are going to get it under our conditions, or not at all. That isn't bullying, that is refusing to be bullied by the simpering whine of the liberal guilt-tripper spreaders of victimology.

# posted by

Mike Lorrey : 6:42 PM

Very cool blog you got! I just added you to my bookmarks!

I have a great article resource you might want to check out.

# posted by

Barney : 9:43 AM

Cool blog you have. I have a msn money related site. Check it out if you get a chance. The URL is msn money

# posted by

Swingin80 : 9:08 PM