Parliamentarians in Nairobi want Kenya to be the first country to withdraw from the International Criminal Court.
The primary argument for an intervention in Syria seems to be that President Bashar al-Assad’s use of chemical weapons violates an important international norm and that he must be punished to maintain that norm. Of course, it’s difficult to say for sure what the Obama administration is thinking. Still, the debate has got me wondering about what kind of international norms we would like to see universally respected and enforced. One of the many inexplicable aspects of the administration’s Syria policy is that the norm against chemical weapons has suddenly assumed a status above that of many other international norms that the United States continues to transgress. Many people have burned electricity explaining what makes chemical weapons worse than conventional weapons, but I still haven’t been told why the norm against chemical weapons is more important than other norms.
In Nairobi this week (since I promised not to discuss Syria on this blog this morning) the Kenyan parliament voted to withdraw from the International Criminal Court. If Kenya follows the motion with a formal notice to the United Nations, Kenya will be the first country to withdraw from the court, establishing a clear precedent for leaders in all of the courts’ member states: You can commit atrocities as long as you have the support of a a majority of the electorate and your allies in the region. Kenyan president Uhuru Kenyatta is accused of inciting his followers to violence after the disastrous election of 2007. It is true that his case hasn’t gone to trial yet, so it would be wrong to make assumptions about his culpability. In addition, the country’s withdrawal does not remove Kenyatta’s legal obligation to appear before the court, since the investigation was already underway. Still, the Kenyan parliament’s message seems clear. Perhaps in the future, other countries where heads of state have guilty consciences will remove themselves from the court in a more timely manner.
The United States, of course, is not a member of the International Criminal Court. One would think that if the United States were seriously committed to protecting the innocent of the world from horrific, politically motivated violence, the International Criminal Court would not be a bad instrument for accomplishing that goal. If one had arrived here from Mars last week, one might even have thought that the United States was one of the court’s most ardent supporters, and that President Obama would condemn Kenya’s decision to withdraw in the strongest possible terms.
One would be mistaken. Indeed, a parliamentarian cited the absence of the United States from the court in explaining why Kenya should withdraw, the Associated Press reported:
Noting that the United States and other world powers are not members of the International Criminal Court, the majority leader of Kenya’s parliament said Thursday that the country should withdraw from the statute that created the ICC.
Adan Duale told a special session of lawmakers that presidents Bill Clinton and George W. Bush had argued against the United States becoming a party to the Rome Statute, which regulates prosecutions for war crimes and crimes against humanity at the ICC. …
Clinton and Bush, Duale said, refused to join the ICC in order to protect U.S. citizens and troops from potential politically motivated prosecutions.
“Let us protect our citizens. Let us defend the sovereignty of the nation of Kenya,” Duale said.
Had the United States joined the court under Clinton, we, like the Kenyans, probably would have withdrawn as soon as its prosecutors started making noises about charging Bush or Obama administration officials for the torture of prisoners. You could object that torture is justified in certain circumstances and that the court is ineffectual anyway. Even if those objections had merit, the point remains that the United States is only concerned about defending international norms when our leaders believe, rightly or wrongly, that it is convenient for us and compatible with our other interests. That’s why the United States helped Saddam Hussein use nerve gas in the Iran-Iraq War in 1988.
Returning briefly to the Syrian crisis, supporters of a military strike must either argue that an intervention would be in the interest of the United States, or that the United States needs to respect international norms in general and, among other things, join the International Criminal Court. I don’t think advocates for intervention really believe either, but any other justification for an attack is intellectually dishonest.
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