The ICC was created in 1998 to try people who commit international crimes, including war crimes and genocide, when domestic institutions fail to do so. The United States was roundly criticized for wanting to make the Court a tool of the Security Council, to be set up when and only when its members could agree that a judicial approach to a problem of international relations makes sense – such as the civil war in Yugoslavia and the genocide in Rwanda, for which ad hoc tribunals had been set up. The United States, with some prescience back in 1998, feared that the Court would be used against Americans who were accused of committing international crimes. The U.S. view was rejected and the ICC was given independence, including its own prosecutor, and the right to launch investigations against any ICC member and other states that commit crimes on the territory of ICC members. The United States refused to join the court, though 106 other countries have.
Ten years later, the ICC has turned out to be an African Criminal Court, one called in by national governments in Africa that have wanted international help in dealing with insurgents who have committed atrocities (so far, Uganda, the Democratic Republic of Congo, and the Central African Republic). Fine and good; what one might call a pragmatic adjustment to international realities. All of this good feeling ended when the current prosecutor announced that he sought an indictment of Omar Hassan al-Bashir, the president of Sudan. Even human rights advocates have been made uneasy by this blundering into a delicate situation. Now humanitarian workers in Sudan are at risk, negotiations to resolve the conflict in Darfur are in trouble, and China, Sudan’s ally, is deeply annoyed. The prosecutor, you see, was supposed to exercise “political sensitivity,” not stage a judicial coup and overthrow a head of state. But why should a prosecutor do that? Remember Ken Starr and Lawrence Walsh? When prosecutors are given independence, they prosecute, political consequences be damned. The whole point of giving the ICC prosecutor independence in the first place was to avoid making the Court a plaything of the great powers, so he could slay the dragons of international illegality wherever they could be found.
Meanwhile, here is an even more delicate situation. News reports suggest that Russians and Georgians alike have committed atrocities in South Ossetia. The ICC has not launched an investigation; the situation is "under analysis." Why not? For one thing, while Georgia is a member of the ICC, Russia is not. So Georgia was not only crushed by Russia; it now faces the prospect of having citizens, perhaps soldiers, perhaps even leaders, being sent off to the Hague for a trial. To be sure, the ICC is not supposed to intervene if Georgia investigates in good faith, but Georgia will probably not do so. Countries in situations like Georgia’s rarely do.
Now although Russia is not a member of the ICC, in theory the ICC has jurisdiction over Russia, to the extent that it committed international crimes on the territory of a member – namely, Georgia. Suppose then that credible evidence shows that Russians committed atrocities, maybe on the orders of generals or, who knows, Vladimir Putin himself. Then it is the duty of other ICC members – Italy, say – to arrest Vladimir Putin while he’s sunning himself on vacation in Capri and hand him over to the Hague. Good luck, one can only say – and take a Geiger counter along next time you go out for tea! Maybe the prosecutor will rediscover the merits of political sensitivity.
(Russia apparently will help ethnic Russian citizens of Georgia file claims with the ICC. Russia itself has no power to ask the ICC to act, but Georgians do. Sneaky!)
Meanwhile, here’s a question for the weekend. Suppose Georgia had been a member of NATO when Russia invaded its territory earlier this month. Would NATO military forces have honored the treaty obligation and launched a military response even though no one in the west thinks that Georgia is worth World War III? If not, would NATO have been revealed as a meaningless institution? Or should we assume that Russia would not have attacked Georgia in the first place for fear of provoking a military response from NATO?
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Just to clear that up: Ossetians are not ethnically Russian. Russians, Ossetians, Georgians, and Abkhazians are separate ethnic groups.
Russia has been giving out citizenship to separatists (mostly ethnically Ossetian or Abkhazian, but not exclusively) in South Ossetia and Abkhazia.
Another interesting post btw, and a great start to your blogging at Volokh.
Is Russia ready to go to war with NATO? They didn't during the Cold War, and some of their allies then have switched sides since then. They are comparatively weaker now than then, esp. as compared to the U.S. And I would expect a robust response from us, esp. as to air and naval assets, with either Bush or McCain as president. Obama? Not as clear.
Another thing to keep in mind is trade. NATO has the bulk of the G8 members (lacking only Japan and Russia?) This would possibly get them booted from the G8.
This is what happens when you send a lawyer to do a soldier's job. And i say that as a lawyer. You have to know your limitations, or in this case, the law's limitations.
Because Russia doesn't participate in the ICC, only Georgian soldiers can be hauled before the ICC for war crimes; Russian soldiers who commit war crimes get off scot free. This gives Russia far greater leeway to (ab)use the court as a weapon against Georgia, much like certain Middle Eastern interests have used international law and the Geneva Conventions as a weapon against both the U.S. and Israel.
Posner asks if Georgian membership in NATO would have deterred Russia. Maybe. On the other hand, if Georgia were in NATO, presumably the other NATO members would have sat Georgia down and explained whether Georgia needed to take one for the team and let South Ossetia go or not. Alliances should promote restraint among their membership, because allies don't want to go to war to protect only one member's interests. Anyway, with the South Ossetia issue out there, Georgia is a very bad candidate for NATO membership.
There are many cases all over the world where the police, prosecutors or politicians do not take action against gangs or terrorist groups as required by law, because they are afraid, concerned about collateral damage or they have illicit business dealings with them. How is this any different?
The Soviet Union is gone and the European countries are pretty much too effete to pose much of a threat to each other, but NATO still serves a useful purpose by siphoning off any nascent militarism that might arise. Expecting it to be any more useful than that is expecting a pig to whistle.
Swine: Russian soldiers get off scot free? ICC has jurisdiction over any qualifying crimes that take place on the territory of a State Party, e.g. Georgia. Are you talking about enforcement of warrants? Same problem then re Georgian nationals. I am still looking for an explanation why Georgia is disadvantaged here.
Russia was already in the process of invading Georgia the first week of August. Georgia knew this. Georgia knew that it could not expect any aid to repulse the attack, and that it had no strategic depth. So Georgia made a desperate effort to seize the road through the mountains in order to block the Russian attack. This effort by Georgia on August 7th failed, and the Russian invasion went in as already scheduled on the 8th. At which point, the only restraints on Russia were diplomatic; no military action could stop Russia from conquering and annexing Georgia.
If Georgia had been a member of NATO, Georgia would have had no need to seize the pass, since it would have had the guarantee of aid from its NATO allies, and gained the strategic depth of Turkey. So, sure, there would have been no "provocation" (though not because Georgia was restrained by its allies, but because Georgia's circumstances would not have been so desperate). But since the actual provocation was Georgia refusing to be an obedient province of the Russian Empire, there wouldn't have been any less incentive for Russia to invade.
What would have been different is the Russian calculation of risk and reward. The whole point of NATO, after all, is to automatically bring all of NATO in on the side of a member country that's invaded. The strategic logic is such that a NATO nuclear strike would have to be included in any calculations of whether to invade Georgia, and there is nothing in Georgia worth even a 1% chance of a nuclear holocaust consuming Russia. Further, an invasion of Georgia to the Turkish border is much, much easier than a war across Turkey to the Aegean. Such a war would quite possibly be beyond Russian abilities to bring to a successful conclusion, even if by massive Western default Turkey were the only NATO member Russia had to deal with beyond Georgia.
Moreno-Ocampo (the ICC prosecutor) has been fairly non-political, so I don't think Georgia has much to worry about from ICC membership the way things have actually played out either. We still don't have the best information, but early info from Human Rights Watch (who, whatever you think of their political views, are usually pretty good at getting the on the ground facts right) indicates no sign of Georgian atrocities, and indicates that Russia massively overstated the supposed casualties from Georgia's actions on the 7th.
It certainly makes little sense for the US to be in the ICC, but it did make sense for Georgia to be there and I don't think they will have any reason to regret it. Small states generally like institutions like the ICC: they give them some small diplomatic advantage at least, and if you live near a hungry bear, you will take anything you can get.
I also agree with DRM and others who have said that NATO membership would have prevented this from ever happening. Of course, there is a bit of a chicken or egg problem here. Is Georgia not in NATO because we were worried this might happen and weren't willing to deal with it? A possibility, but I think Georgia was a safe enough gamble for NATO, and if they had been in NATO that would have been sufficient deterrence. Georgia is not crazy enough to actually provoke a war. As DRM noted, Russia was already preparing to invade. Aug 7, much less Aug 8, would never have happened with Georgia in NATO. We certainly need to be careful about who we let in, in order to preserve the effectiveness of the alliance, but Georgia would not have compromised NATO and would have prevented the present situation, which puts the US (to say nothing of Georgia itself!) in a tight spot.
Absolutely, and that's the problem. The Russians do not believe they can beat Turkey in a conventional war. It is absolutely beyond their capabilities. The likely result would be Turkish tanks in the Caucasus. The problem is that they do think they could beat Turkey in a nuclear war, and could probably get away with it.
I think that, if Georgia had become a NATO member after South Ossetia's de facto secession (which is the only timeframe in which it possibly could have been), there would have been a diplomatic solution well before any tanks rolled across any borders; however, the likely diplomatic solution would have been to allow Russian annexation of South Ossetia.
ICC is indeed a tool of totalitarian regimes against democracies. Since Georgia is every bit as fascist as Russia, they are not at disadvantage - they can imitate "investigation in good faith" with plausible deniability without any danger to its officials.
Russia would have attacked anyway, but would not be establishing a permanent presence outside of South Ossetia/Abhakwhatever, and would keep fewer troops inside those territories (it wouldn't be bringing in missile launchers onto Georgian soil).
Russia would be able to make its point without forcing NATO's hand. NATO would still be weakened, and Russia strengthened, but Georgia would be better off.
The Human Rights Court of the Council of Europe (the Strasbourg court) has already had to set up a separate section to deal with "applications" filed by the Russian government -essentially nuisance actions designed to gum up the works
Have you seen any of the beheadig videos that our enemies in Iraq put out? They make a guillotine look like massage therapy.
It was a joke. I think. If not...it was a joke.
We ran that experiment in 1938. Why expect a different result this time?
Other than that, yeah, everybody's clear on the concept.
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