Inter-national justice for them or global justice for us? The U.S. as a supranational justice donor.

• Author: deGuzman, Margaret M.
• Position: New Beginnings, Resets & Pivots: The International Legal Practice of the Obama Administration

U.S. policy concerning international justice, particularly at the ICC, involves case-by-case support when such support is in U.S. national interests. This policy signals that the U.S. considers itself a supranational justice donor rather than a member of a global justice community committed to enforcing shared values. This approach to international criminal justice both inhibits global justice efforts and undermines the U.S. claim to global moral leadership. The next U.S. administration should assert full membership in the global justice community by joining the ICC and providing unequivocal support for all efforts to address serious international crimes.

CONTENTS I. INTRODUCTION II. CASE-BY-CASE JUSTICE III. INTER-NATIONAL OR GLOBAL JUSTICE? IV. CONSEQUENCES OF SELECTIVE SUPPORT FOR GLOBAL JUSTICE V. IS A GLOBAL JUSTICE POLICY POSSIBLE IN THE U.S.? VI. CONCLUSION I. INTRODUCTION

In one of his relatively few statements about the International Criminal Court (ICC), President Obama said: "[W]e 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." (1) This statement reflects the U.S.'s "case-by-case" approach to supporting international justice efforts. (2) Under this policy, the administration's support for international justice depends on a situation-specific assessment of U.S. national interests. As then Secretary of State Hilary Clinton put it, the U.S. will "look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to justice." (3) This focus on national interests stands in contrast to the approach to supranational criminal justice taken in some other parts of the world. For instance, the European Union emphasizes the importance of promoting "universality" in relation to the ICC. (4) Former UN Secretary General Kofi Annan also highlights the global nature of the enterprise, urging all states to "demand that those who claim the mantle of global leadership accept the duty of promoting global values." (5)

The contrast between U.S. policy and rhetoric concerning supranational justice and those in other parts of the world reflects a fundamental open question about the nature of the international criminal justice enterprise. That is, it remains unclear whether the supranational criminal law regime is intended largely to provide a framework for states to assist one another in effectuating national justice goals, an "inter-national" justice agenda, or is instead meant primarily to reflect and promote global justice norms, a "global" justice agenda.

This essay argues that the U.S. has chosen a policy that promotes a selective "inter-national" justice for others, rather than one that signals U.S. membership in a global community committed to global justice norms. For the U.S. to support supranational justice only in cases that align with U.S. national interests may make sense if the regime's primary goal is inter-national justice assistance. If outside support is designed to help ensure that justice is done in the state most affected by the crimes at issue, there are good reasons to make the investment only when foreign justice advances--or at least does not detract from--the interests of the assisting state. On the other hand, if the central purpose of supranational justice is to promote the norms of a global community, members of the community should provide their support whenever possible; that is, whenever the costs of support are not too great in relation to the supporting state's other obligations.

The U.S.'s selective case-by-case approach to supranational justice signals that the U.S. views itself as a supranational justice "donor" rather than as a leading member of the global justice community. Although current U.S. policy certainly suggests greater affinity toward the global justice community than did that of the Bush Administration, particularly in the latter's early years, the U.S. has not claimed full membership in the community. This approach has consequences for the U.S.'s reputation as a global leader and for the effectiveness of the supranational justice regime. Remaining outside the global justice community undermines the U.S.'s ability to act as a global leader in matters affecting the shared moral norms of the global community. U.S. exceptionalism in this regard also undermines the legitimacy of the ICC and of other global justice actors. Not only is the U.S. withholding its full support from such actors, its case-by-case policy undermines the very notion that a global justice community exists. If institutions such as the ICC cannot claim to act on behalf of a global community, their legitimacy becomes precarious, particularly when their actions affect states that have not consented to their authority.

2. CASE-BY-CASE JUSTICE

   The Obama Administration's rhetoric is not devoid of references to global justice values. For instance, President Obama stated that, "those who intentionally target innocent civilians must be held accountable." (6) This statement can be read as an implicit acknowledgement of a global norm requiring accountability for the war crime of targeting civilians. The U.S. President has also hinted that accountability for serious international crimes is generally in U.S. interests. For example, as a presidential candidate he stated that, "it is in America's interests that these most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable." (7)

   Nonetheless, the Administration's policy is to support supranational accountability efforts only in cases that align with U.S. national interests. In particular, the Administration seems to regard accountability in Africa as aligning with U.S. interests. The U.S. provided U.S. military

   personnel to assist in the capture of notorious war criminal, Joseph Kony, who is wanted by the ICC, (8) and adopted legislation supporting prosecutions of crimes of sexual violence in the Democratic Republic of Congo. (9) President Obama called for Kenyan support of ICC prosecutions in that country, (10) and the U.S. facilitated the transfer to the ICC of Bosco Ntaganda, a warlord wanted for crimes committed in the DRC. (11)

   In contrast, the U.S. has not provided public support to the ICC's efforts to encourage national justice in Colombia. Likewise, the U.S. has resisted Palestinian efforts to involve the ICC in that situation. (12) Despite earlier official statements supporting states' decisions to join the ICC, (13) the U.S. condemned the decision of Palestine's President Mahmoud Abbas to sign the Rome Statute, calling it "counter productive" (14) and asserting that it does "nothing to further the aspirations of the Palestinian people for a sovereign and independent state." (15) Indeed, the U.S. has gone so far as to threaten to withhold...