The Annual Mike Lewis Memorial Teleforum: The Identity Crisis at the International Criminal Court

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Nick Marr:  Welcome all to this afternoon's Federalist Society Teleforum conference call. I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. We have a special episode planned this afternoon. It's our Annual Mike Lewis Memorial Teleforum. This time, we'll cover the “Identity Crisis at the International Criminal Court.”

 

      A quick word about who we're gathered here to honor. Mike Lewis was a law professor at Northern Ohio. He was an internationally renowned professor. A tireless advocate for a principled and wise application of the law of armed conflict consistent with both the values and interests of the United States.

 

      He was a great friend of The Federalist Society, speaking at dozens of events and serving on the Executive Committee of its International and National Security Law practice groups for sponsor of these teleforums. His life was tragically cut short by cancer. We thank him for his service. And we do what we can here, each year, to gather in his honor and discuss a topic of interest to Mr. Lewis.

 

      Now, I'll briefly introduce our speakers. And as always, expressions of opinion on the call are those of our experts. First, we're pleased to have Professor Michael Newton. He's Professor of the Practice of Law at Vanderbilt Law School. Our discussion today will be moderated by Professor Jeremy Rabkin, who's Professor of Law at Antonin Scalia Law School at George Mason University. We'll have a bit of a moderated discussion and then we'll go to audience questions a little bit over half-way through.

 

      So with that, Professor Rabkin, the floor is all yours.

 

Prof. Jeremy A. Rabkin:  Thank you very much Nick. I'm going to ask Mike Newton, first, to tell us about a case that he's recently been involved in, at least submitting an amicus brief. Bosco Ntaganda, somebody convicted of war crimes for activity that might not strike many people as particularly heinous. Why don't you tell us about that?

 

Prof. Michael A. Newton:  Well, I think that's a wonderful place and a very appropriate place to start in this discussion because it really involved a core law of war issue. It's exactly the kind of thing that Mike Lewis would have been all over, in terms of opining and thinking about.

 

      The predicate, and I have to make sure everybody is clear on this is, the difference between Hague law and Geneva law in the law of war. Hague law typically addresses means and methods and targeting issues. And therefore acts as a secondary question, rights of people in innocent protected places. Geneva norms are exactly the opposite.

 

      They start with the protection of the person, the protection of the place, but then have considerations built in to facilitate law from military operations. And the gist of the Ntaganda appeal was that the prosecutor charged a very aggressive, completely novel approach to protecting places, cultural property, schools, hospitals. Essentially, any interaction of any military force with those places in her framing of the case equated to deliberately targeting it.

 

      So in the actual case, they moved into a church. And they dug defensive trenches around the church. And they built a fire in the church. And the prosecutor charged that with the Hague offense of intentionally directing attacks at the church. No different than if they had just bombed and destroyed the building.

 

      They lost on that at trial, which is the source of the appeal. You know, the prosecution won everything and got a 30-year sentence but lost on that one key issue because the trial court rejected that approach and said, no you charged it incorrectly. And yet, they still appealed on it.

 

      So that's what we just -- we submitted briefs and then we did oral argument on the 12th of October. And that's an issue that affects military forces in a very granular way all around the world every day. And I'm happy to explain it further if it makes sense. But I think that's exactly the kind of issue in terms of the actual implementation of the laws of war that Mike Lewis would have been all over.

 

Prof. Jeremy A. Rabkin:  Yeah, so I do want to pursue this a little bit. But before we get into exactly what Bosco did. So how did you get involved in this? Who was it who said -- or did you do this on your own initiative to organize an amicus brief?

 

Prof. Michael A. Newton:  Well, the appeals chamber, in part, has gotten into the habit of asking for amici. They did it in the Bashir case, because it was a very complex legal issue, which, in some ways, is a form of just providing cover for themselves. They did it in the Afghanistan appeal, the jurisdictional appeal there.

 

      And so now they did it again. And when the call first came out, I didn't intend to do it because I've been busy and, you know, the COVID's in the air anyway. I've been busy. And then I started having some friends say, you know, you really should help get the law straight here. Or keep it correct. Or keep them from corrupting the law. The law is very clear.

 

Prof. Jeremy A. Rabkin:  And I assume this was an online session. You didn't actually have to go to the Hague? Or did you?

 

Prof. Michael A. Newton:  No, we did. There were some participants in the courtroom, so the courtroom was open. But most of the counsel, and at least two of the judges were online as well. So I sat here in Nashville. Court hearings began at 2:15 a.m. my time, morning Hague time. And out of all the briefs, I think they picked four different people to actually do oral arguments.

 

Prof. Jeremy A. Rabkin:  And so just give us a rough sense of how many people were draw into this as outside lawyers. I noticed on your brief, there were at least three or four of you, right?

 

Prof. Michael A. Newton:  Not on mine. I mean, I did mine by myself. There was one brief --

 

Prof. Jeremy A. Rabkin:  Roger O'Keefe, right?

 

Prof. Michael A. Newton:  Yeah, Roger O'Keefe. There were 12 briefs submitted.

 

Prof. Jeremy A. Rabkin:  Yeah, okay.

 

Prof. Michael A. Newton:  Overall. And some of those groups had three to four different lawyers to work on that.

 

Prof. Jeremy A. Rabkin:  So substantial sampling of, let's say, international legal scholarship.

 

Prof. Michael A. Newton:  Oh yeah. Yeah, you know, some input from Geneva. Some of the people in Geneva who dabble in the law of war.

 

Prof. Jeremy A. Rabkin:  (CROSSTALK 00:06:55).

 

Prof. Michael A. Newton:  Yeah. Yeah. They're in that part of the world. But a good cross-sampling across the world. Some U.K. Some very find submissions from the U.K., from U.K. lawyers. And as I said, they picked four for oral arguments. Which were -- the way they do oral arguments is actually pretty interesting.

 

      And depending on how you spin it, they have designated sets of time, prosecution and the defense makes their submissions. Then the amici makes submissions. And then they take a break. And it can be a long break. And then they come back. And there's just a designated time on the -- for questions. And it's a pretty hot bench, actually.

 

      First question I got was a very hostile question. Because I had said something to the effect of, commanders all around the world would be shocked. This would send shockwaves around the world if commanders around the world are told they can't dig defensive trenches around a military objective that they have just taken. That goes back to the Rome -- you know, that's just basic -- we would fire a commander who didn't do that.

 

      But in the prosecution framing, that was an abuse of the place. That was the same as targeting. And that's why she charged it, intentionally directing attacks at the place as a military objective. Which is just -- that's not what happened.

 

Prof. Jeremy A. Rabkin:  So I want to ask you a bigger question about the ICC. I tried to check how many defendants have been convicted on war crime charges, or crime against humanity charges. And there's a little bit of dispute about how to classify them, but it's in the single digits over nearly 20 years, now. They have not achieved very much at all in the way of bringing people to justice for the most serious crimes. Why are they detouring into something that is so peripheral as this kind of issue?

 

Prof. Michael A. Newton:  That's a good question.

 

Prof. Jeremy A. Rabkin:  They did or didn't do some harm to the church? Why are we mobilizing international justice on such a secondary question as this?

 

Prof. Michael A. Newton:  Well, one of the -- we coined this the identity crisis.

 

Prof. Jeremy A. Rabkin:  Yes.

 

Prof. Michael A. Newton:  And I think that's part of the identity crisis. Is the function of the court to be clean and efficient, to dispense justice where they can and appropriately, and as a result, to do any case that's appropriate? So you charge smaller number -- more discrete charges. You focus on just doing justice, bringing justice. And the important thing here is in conjunction with states. That states have an equal role in doing justice for war crimes and crimes against humanity.

 

      Against that, though, is the idea, and this is very prevalent when you're in the Hague and you talk to people, particularly in the office of the prosecutor, that it's the job of the court to expand international law, to be expansionists, to make new law. And in fact, when she charged this case, they specifically said in the press conference, we want to expand the boundaries of international law here because we want to try to protect cultural property in a better way. Which ignores the fact that there's plenty of law out there that already protects cultural property.

 

Prof. Jeremy A. Rabkin:  But you might ask, why do you want to expand the boundaries when you're doing so little within the existing boundaries.

 

Prof. Michael A. Newton:  Touché. Touché.

 

Prof. Jeremy A. Rabkin:   Well, I mean, particularly cases that involve mass death, which sadly there's been a lot of mass slayings in the last 20 years. To say that we have to protect the front yard of churches seems a tremendous come down from that.

 

Prof. Michael A. Newton:  Even the very first case. The very first case back in Lubanga, back in the day, which seems so antiquated now. He had been charged with genocide in the domestic courts. And the prosecutor essentially pulled that court -- or that case to the court and charged him with far more -- not inconsequential on an individual anecdotal basis, but in the macro, recruitment of child soldiers and some much smaller war crimes, as opposed to the genocide charges in the domestic sense. And it really is about institution building. There's a very strong strand of just institution building.

 

Prof. Jeremy A. Rabkin:  I'm not putting it this way to be snarky. It just struck me that the ad hoc tribunals and the ICC seem to envision law reviews as a major constituency, and maybe even case books, so they want to have cases that are interesting, even if they're not from an actual humanitarian point of view, important given the scale of suffering involved. Does that sound right to you?

 

Prof. Michael A. Newton:  I think in some ways, yeah. You also have the really interesting competing dynamic that, at this very same time, you have a function in court that's designed and supposed to be a court, an independent, and doing all that, but at the exact same time is, in fact, a political body in an international organization.

 

      And I think it's fair to say that most of the criticisms directed against the court, which have now been documented in this independent experts report, really go back to just the simple basic management of cases. And who does what to whom in the planning process.

 

      So to take your point, in the early days of the ICTY, and throughout its life, there was a rigorous vetting process for every set of charges. People would sit around a table and really push each other and debate, what do we charge, why do we charge it, how do we prove it, etc.

 

      In the very early days, the first prosecutor set up a far more autocratic process. And that process has changed really only in degree over the years. You still have a stove piped, pretty structural process that doesn't really get at the best evidence, the best investigations, the best most suitable set of charges. And that's why, compared with both the ICTY and domestic courts, there's a very high acquittal rate.

 

Prof. Jeremy A. Rabkin:  Yes.

 

Prof. Michael A. Newton:  I mean, you have motions to dismiss. You have full acquittals. You have -- you know in the very early days; you have the first defendant out of Darfur situation was a rebel warlord who truly felt he was guilty. And he turned himself in. It was what's called the first voluntary transfer. He turned himself in because he absolutely did not feel like he had done anything wrong. And he called their bluff. And that case was dismissed before it ever got out the gate. Because they had no evidence, and yet they had charged him.

 

Prof. Jeremy A. Rabkin:  You mentioned the independent experts. Why don't you tell our listeners what that -- who was involved in that and where they can see the resulting report.

 

Prof. Michael A. Newton:  Well, the -- there's been this backlog of complaints and frustrations. And sometimes in response to cases, particular cases. And sometimes in response to practices and rumblings from the court itself. And sometimes in response to, frankly, the allegations of corruption and the allegations of misconduct for when that court -- you put all that together and it finally bore fruit.

 

      So that in September of this year, September 30th, the independent expert review had six very significant international experts who put together a top-to-bottom report. They interviewed people in the court. They interviewed experts. They interviewed bar associations. They interviewed victims. And they had 304 hard-hitting recommendations. There were some people that sort of expected it to be a very superficial, sort of a whitewash, hey the ICC is great, you should double its funding.

 

      In fact, it's hard-hitting. It's very, very, very hard-hitting. Some of the most influential --

 

Prof. Jeremy A. Rabkin:  Just give people a name if they want to find this online. Like, who is the chairman?

 

Prof. Michael A. Newton:  Richard Goldstone, the first ICTY prosecutor was the chairman, chairperson.

 

Prof. Jeremy A. Rabkin:  I see, another Goldstone report.

 

Prof. Michael A. Newton:  Another Goldstone report, exactly. But you can find it -- heck, we could put it on The Federalist Society website, if you want to know the ins and outs of the court. But, I mean, among other things, a widely, widely tolerated climate of sexual harassment.

 

Prof. Jeremy A. Rabkin:  Yes.

 

Prof. Michael A. Newton:  Lots of that. Here's a quote from paragraph 62 of the report. And you can see, this goes back to your question about, why don't we get the right charges and the right people?

 

      The court appears to suffer, internally, from distrust and a culture of fear. That climate began with the first prosecutor and continue to this day, where people can't say, wait a minute, I disagree. It's a very, very frustrating place to work for a lot of people.

 

Prof. Jeremy A. Rabkin:  So they have indicated -- the prosecutor indicated that she was investigating possible American crimes in Afghanistan. And then President Trump announced that we were going to impose sanctions on, I guess, the prosecutor and some other officials. Tell us what you expect to develop from the Afghan investigation. And whether you think the sanctions will actually make any difference. Or whether you imagine that they will be rescinded by the incoming administration in Washington.

 

Prof. Michael A. Newton:  Well, how about the low hanging fruit, the easy question.

 

      You know the Afghanistan situation --

 

Prof. Jeremy A. Rabkin:  Actually, actually, I thought the Biden question was easy.

 

Prof. Michael A. Newton:  Yeah. The Afghanistan situation began when Afghanistan ratified the treaty. And what people may not understand is that, that act of treaty ratification—this is a treaty, this is not a compulsory process—applies principally. It grants treaty-based rights by that country, from that sovereign, to the court.

 

      Among which are the rights to prosecute my nationals, or crimes that took place—and here's the key language—on my territory. That's the trick. So Afghanistan did that and the investigation, or the preliminary examination began, obviously focused on the Taliban, or focused in on egregious crimes committed all across Afghanistan.

     

      The court, as an independent judicial body, though, feels very strongly that they must look equally at all the parties to a case. Notwithstanding the fact, footnote, in the very first situation in Uganda, they didn't do that. They investigated only one side. So it's not unprecedented that they made a strategic choice just to investigate where there's more productive, or the vast bulk of crimes.

     

      In this case, the suspicion is, well, they were politically pushed to go after Americans, both in the military and in the agency, for the extraordinary rendition program. And in response to that, the pre-trial chamber dismissed the case. They said, we don't think that the interests of justice warrant continuing with this case.

 

      So that issue went all the way to the appeals chamber, and the prosecution -- the appeals chamber, just this spring, gave its authority to open a formal investigation. So that's where we are.

 

Prof. Jeremy A. Rabkin:  Just give us a rough sense. I mean, it may be true that Afghan nationals were spirited out of the country and bad things happened to them somewhere where they were questioned. But we're talking about two dozen, one dozen. I mean it's a very small number of people, right?

 

Prof. Michael A. Newton:  Oh, at best, we're talking in the early days of 2003, around 20. And I think she said 23. But the key thing is, look, she's not focusing on people that are actually -- had anything that she can prove in Afghanistan. She's focusing on, in some cases, extraterritorial acts that took place in Europe. But --

 

Prof. Jeremy A. Rabkin:  Yes. We grabbed people outside the country.

 

Prof. Michael A. Newton:  -- had some effect on Afghanistan. And so if you just looked at the case as a legal matter, a purely legal matter, it's a shockingly thin case. And oh, by the way, footnote, all of her evidence in building that case come from, drumroll please, U.S. investigations.

 

Prof. Jeremy A. Rabkin:  Yes.

 

Prof. Michael A. Newton:  And there's this stunning sentence in her -- remember, she did what was called a preliminary examination, which then moves to an investigation. There's a stunning sentence or two in her request for investigation where she says, there appears to be no investigation, no effort made, to take the people that I'm interested in pursuing charges against to count. She ignores 10 years of U.S. investigations.

 

      And yet, almost all of her footnotes come from, either the Senate Select Committee Report, or other U.S. criminal investigations, etc. Then she goes on to say, but even where there were investigations, they didn't have the supervision of prosecutors. Well, that ignores the fact that the Attorney General, personally, made prosecutorial decisions in some cases, as well as other people who had prosecutorial authority.

 

Prof. Jeremy A. Rabkin:  Just to clarify this for listeners who haven't been paying close attention. The treaty seems to indicate that states have the primary responsibility for prosecuting these offenses. And the ICC is supposed to get involved only where there has been a default of state responsibility to investigate. So these seem like really peripheral claims to begin with. I mean charges to begin with. And as you're saying, there's not any indication of an American default here. Right?

 

Prof. Michael A. Newton:  Well, the language of the treaty is “unable or unwilling, genuinely to prosecute.”

 

Prof. Jeremy A. Rabkin:  Yes, right.

 

Prof. Michael A. Newton:  And, oh, by the way, it doesn't require prosecution. It requires investigation or prosecution. So I mean, I've written on this, that the American efforts to investigate misconduct -- which we documented publicly. You know, we've prosecuted over 250 people for various offenses and various connection with detainee treatment in Afghanistan. What they want, of course, is to go for very senior U.S. officials.

 

      The idea being that there was this policy, expressly, to commit crimes. It was cooked up in the Pentagon and in the Beltway. And then exported around the world, particularly to Afghanistan. So just in a pure evidentiary way, it's almost an impossible case for her to build.

 

Prof. Jeremy A. Rabkin:  Do you think the next administration will withdraw the sanctions. And do you think that this will be encouraging to the people in the Hague?

 

Prof. Michael A. Newton:  I think it's a difficult decision because --

 

Prof. Jeremy A. Rabkin:  Yes it is, yes.

 

Prof. Michael A. Newton:  It really is a hard choice because they've already demonstrated that they don't care about our actions. And that from the prosecution perspective, that they just want to discount the United States. So in some sense, withdrawing the sanctions would actually encourage them to broaden the investigation and to bring it.

 

      On the other hand, there's a lot of speculation that it's time for reproche mon. And I say this because the court is about to enter, I think, a decisive two-year window. I mean, absolutely decisive. We talk about election drama, and no I'm not talking about our own election.

 

      You've got a brand-new prosecutor, the third prosecutor. And I think it's fair to say, this will be first prosecutor brought in from the outside. So the first prosecutor was Argentinian, and it was a disaster. The second prosecutor was African and was his deputy.

 

      So she had been there at the creation. This will be the first independent prosecutor to come in from the outside and focus on the basics. How do we build good cases? How do we do justice swiftly? What institutional, what structural reforms do we make?

 

      So the sanctions kind of put a cloud over that new prosecutor's head. Because whatever that new prosecutor decides will be portrayed as being purely political. And withdrawing them, it really, in a way, doesn't affect that. So it is, it's a tough circumstance.

 

Prof. Jeremy A. Rabkin:  You’re speculating that the new prosecutor might be able to behave more reasonably if the new prosecutor didn't have to worry that everything would be interpreted as a response to American sanctions.

 

Prof. Michael A. Newton:  One would hope. But I think it’s fair to say, before we run terribly out of time and take questions, that the search for a new prosecutor is an absolute train wreck. So it is already highly politicized. So you started out with 89 candidates. They short listed down to 14. They had a committee of independent experts who short listed that 14 down to four. And it's fair to say, when that list of four people came out, in my business, there were audible gasps around the world. Because the leading candidates were left off.

 

      The most highly qualified candidates were largely overlooked and left off. Because of the history of sexual harassment and personal corruption, it bred this climate where all you got to do is make an allegation to disqualify somebody, with no investigation, really, and no real vetting. It's a mess. And this process is supposed to start by consensus on the 7th of December of this year. So here we sit here on the very cusp of December 7th. And the decisionmakers have reopened that list. So theoretically, right now, I could nominate you to be the chief prosecutor. And if you got consensus, you could be picked.

 

Prof. Jeremy A. Rabkin:  As William F. Buckley said, I would demand a recount.

 

Prof. Michael A. Newton:  If selected, I will not serve.

 

Prof. Jeremy A. Rabkin:  So I want to ask you one other question before we see what questions the callers may have. You helped to negotiate the elements of crimes which helps to define their jurisdiction back starting in 1999 up to 2002. Let me finish this.

 

      Even back in 1999, John Bolton was saying, this will be a disaster. From the very beginning, he predicted this will be a disaster. I assume if you were engaged in good faith effort to try and negotiate definitions of the crimes, you were more hopeful about it. So what have you learned since then that you didn't appreciate at the time? Or what were you relying on in 1999 that made you think this was a more hopeful project?

 

Prof. Michael A. Newton:  Well, I wouldn't characterize it that way. There are three things I want to say about the elements. I'm glad you asked.

 

      Item first is, you have to know the whole history of the U.S. efforts to negotiate the statute in the first place. We were pretty much stymied at every turn, diplomatically. But a friend of mine calls it the rope-a-dope strategy. Every once in a while, they'd throw us a bone to keep us in the game and keeps us negotiating. And, of course, we were powerful negotiators. So the elements in Article 9 were, in fact, one of those bones.

 

      This is a very common law concept, right. Tell the prosecutor what they have to prove, each and every element, beyond a reasonable doubt. And what that does is, create an even-handed, fundamentally fair process where the defense knows what they have to disprove, and the prosecution knows what they have to prove. And judges have a template. Judges aren’t empowered just to make stuff up whenever they want to. And that was the idea of the elements.

 

      And so I was hopeful. This was an incredibly ambitious project. First thing I want to say is, you had never, ever, ever, in the history of the world, had comprehensive elements of crimes for all of these genocide, war crimes, and crimes against humanity offenses. So the very fact that we were able to get agreement on those things was really significant, diplomatically. That's the first thing.

 

      The second thing is, that the elements from the U.S. side, me, a West Pointer, former Army Officer, and a Marine, an Annapolis grad. Both of whom had advised commanders. Both of whom had been deployed. There were very few real military experts in that set of negotiations. These are diplomats. There were some.

 

      And it's a big deal that in that group—I can honestly say this—the United States joined consensus on those elements. Because if they're applied properly, they absolutely represent a good faith, fundamentally appropriate embedding of the actual laws and customs of war. And we thought it was important to do that because it at least functions to check the prosecutor. It at least gives you the template to go back and say, time out.  Here's what you got to prove, and you didn't do it.

 

      And what we've seen in cases is, that they can't just ignore the elements. This is the third thing. In the statute, the elements are advisory. But in practice, and in holdings of the court, they've become mandatory. You can't just ignore them. So what they do is, rather than ignoring them, they simply reinterpret them. They twist them, they bend them in ways that suit their own predication. And I can talk, if people are curious about more ways that they've done that. They did it in Ntaganda on at least two issues. They did it in the Lubanga case with regard to command responsibility.

 

      And the elements give you at least a benchmark to fall back on. To say, no, no, no, time out. And I think that's important. Because you've got to remember, you also have a lot of judges who don't know this body of law, at all. They're not experts in the laws of war. They're not experts in crimes against humanity. And they need the elements just as much as the parties need the elements.

 

Prof. Jeremy A. Rabkin:  Yes. It's actually sort of startling given that all of the cases, so far, have risen out of conflicts, so you should have expected that there would be a lot of questions about the laws of armed conflict. But there wasn't more of an effort to recruit judges who had some experience with this. But I guess that's a very specialized group of lawyers. I mean, it would limit the pool of available people, right.

 

Prof. Michael A. Newton:  Well, it's a compromise. Think of it as like a three-level game of Jenga. You have the first level, judges from list A and list B. List A are judges that are judges. Judges that have lots of experience on the judicial side. The other list are political appointees.

 

      So for example, when Japan joined the court, Japan was immediately the largest donor to the court. Of course, the next person that Japan nominates is going to get elected. But it wasn't a lawyer. It was a diplomat. So there's that interface of law and judicial qualifications with politics. And that's gotten slightly better.

 

      The second level, of course, is in these circles, the geographic considerations. And I think it's fair to say, I'll put a marker on the table, that some of the most qualified people in this current crop of current judicial nominations, in December, they're going to elect six new judges for a period of nine years. Some of the most qualified people will not elected because of regional distribution. Geographic distribution problems.

 

      And then the third thing, of course is, the perennial problem in these institutions, or the gender problem. Out of that first group of 69 -- or 89 prosecutorial candidates, 63 of them were male and 26 of them were female. So to get the very, very best people in the world -- and one of the things, the findings of the Independent Experts Report, not surprisingly, is documenting the very difficult attitudes in chambers. Staff writes about being treated as commoners, being treated in a demeaning way. And the fact that there's a perception that judges are just immune, that judges can do anything they want. That's on a personal professional level.

 

      The problem is, if you do that with the law, here the body of laws of war, it affects commanders in the field. And it affects decision making within NATO, which is what I care about.

 

Prof. Jeremy A. Rabkin:  It does if people feel bound by it.

 

Prof. Michael A. Newton:  Right.  But all of our NATO allies can, in fact, be bound. I mean, there's been investigations --

 

Prof. Jeremy A. Rabkin:  Well, they do say -- They do say they are. Yes.

 

Prof. Michael A. Newton:  Yeah.  Well, I mean, they've investigated the Brits for actions in Iraq. They've talked about investigating the French for actions in Mali.

 

Prof. Jeremy A. Rabkin:  No, I do notice this. But European governments don't feel that they can scoff at the court. I mean, they take it extremely seriously when it's announced that the court is investigating something they've been involved in, which I -- wouldn't be true here.

 

Prof. Michael A. Newton:  Well, and I have to say, honestly, that you know, this gets back to the basic attitude that I think has been problematic in the court from day one, which is this allocation of responsibilities and roles. I think a proper constructive role is, we have our role, you have your role. And there's, in human rights terms, we talk about a margin of deference. A margin of appropriateness. And we defer to your good faith judgment of prosecutorial discretion.

 

      It's not our job to come in from the outside and butt in and intrude and tell you that you know nothing. And that's why the statute says, unable or unwilling genuinely. And that is not, in fact, what has happened in practice. And if people are curios, I can get into the case law. I've got a new article coming out on exactly that issue.

 

Prof. Jeremy A. Rabkin:  Yeah, it's -- I guess they do have this problem. But they keep being accused of only investigating African countries. But it's somewhat more plausible to say that Congo has been unable or unwilling to prosecute on its own, than it would be to say this about Britain or France.

 

Prof. Michael A. Newton:  That's correct. That's correct. And not to mention, I mean, one of the big problems in the court right now, which gets back to one of your early questions about how do you be an effective functioning institution, is exactly this, says, where can we do the most good? Where should we be engaged?

 

      And right now, they're overwhelmed. I mean, you've got Columbia. You've got referrals from Venezuela. You've got Guatemala. You've got Georgia. There's a long list of potential investigations. And looming on the horizon, of course, Palestine/Israel, which is this whole other dynamic of politicized decision making.

 

Prof. Jeremy A. Rabkin:  Yes. All right. Let's see if our listeners have some questions. Nick, you're going to tell them how to register their questions?

 

Nick Marr:  Yeah, great. Thanks. And we already have a few lined up. Someone must have known at the beginning because they popped up as soon as this started. We'll go to the first one now.

 

Jason Coleman:  Hi Professor Newton. This is Jason Coleman. It's been a while since I've had your class. But I've enjoyed your talk. I was wondering if you could talk more about Israel/Palestine and is the prosecutor you mentioned before, is that the one who's handling that referral? Or is it a different one?

 

Prof. Michael A. Newton:  No. It's the current prosecutor. The allegations were actually, back in the day, that the first prosecutor was inappropriately encouraging the Palestinians to both, declare a statehood for purposes of the statute, and then to bring a case. Which is, of course, not the prosecutor's job to be out drumming up business. There's plenty of real legit cases out there. So it's kind of been tainted from the beginning. Highly emotional. The legal issues are very complex and fascinating, not the least of which is the jurisdictional question.

 

      The other piece that's really complicated and difficult here, is the interface between the Oslo Accords and what areas the Palestinians actually control. So to the extent that the Palestinians can ratify the statute, which they did, they have no jurisdiction over area C, based on the Oslo Accords. So I've written that they had no legal ability to transfer jurisdiction to the court in the first place. And the prosecution cited that argument in her early arguments.

 

      And then the last piece of this is, this residual element in the statute that there's one particular crime in the statute that was written expressly to get at the Israelis. Particularly Israeli settlements. And in that particular crime, we put in the elements of crimes, a footnote that was agreed to by consensus that was designed to keep that particular crime on established international law. So here, again, one of the themes of this call is, they're making up new norms. They're making up new law. And so that's going to be one of the things to watch to see how far they get.

 

Prof. Jeremy A. Rabkin:  Could you just say a little more about what was in the footnote? Or what that was supposed to achieve?

 

Prof. Michael A. Newton:  So the Arab League, when they negotiated this particular crime, the war crime from the Geneva Conventions is directly transferring your population. The idea being, if the Germans conquer Poland and turn it into New Prussia, and export -- you know, put people on trucks and basically drive out the Poles, that that's a violation of the law of occupation from the Fourth Geneva Convention.

 

      So in the statute, they added this concept of direct or indirect transfer. Meaning, if there's -- it could be any number of things you could think of. One might be tax incentives. One might be, whatever. So that was intentionally added by the Arab League in Rome to try to get at the Israelis.

 

      We dropped a footnote in the actual elements of crimes, that says, look, this new approach is a treaty-based crime, but the substantive content here is based on the laws that existed in 1949 in the Geneva Conventions. In other words, you're not making up new law. You're making up a new modality of committing the old war crime.

 

      And if this case goes to court, what you're going to see is litigation revolving around that exact concept. And of course, the court will say, dang right we're making up new law because we're empowered to, and we want to. That's why I say there's really, really, way deep political overtones here.

 

Prof. Jeremy A. Rabkin:  I just again, I am kind of staggered at the idea that they could look you in the face and say, this is one of the most serious crimes under international law, people living in the wrong place. I think nobody's ever been prosecuted for that. Building a house. Or letting someone else build a house. I mean, that just can't be -- what's the actual phrase in the preamble? Crimes of the most --

 

Prof. Michael A. Newton:  Most serious concern to the international community as a whole.  Yeah.

 

Prof. Jeremy A. Rabkin:  I mean these are basically nonviolent crimes, right?

 

Prof. Michael A. Newton:  Oh, yeah.  Yeah.  Yeah.  And more importantly, too, for a court that's set up from the ground up to be independent, to be external of politics, laced with politics from the inception, in this case and in others. I mean, this has been a recurring problem in the court that they've never truly effectively dealt with. Which is, of course as you mentioned, all the perceptions about Africans. But that as only a piece of it. There's lots of more examples.

 

Prof. Jeremy A. Rabkin:  Yes. All right. Let's see what other questions people have.

 

Caller 2:  Hi. Thank you very much. These are really important issues, especially at a time when this country's so divided in our own justice system, and our own way of life is being questioned in a way I think it never has been before. And I just wondered whether you thought -- I mean, I think your degree is -- the issues you raised, which of course, are not getting much attention in the media. And I wondered if you just have any thoughts of why, or if there's any way to remedy that?

 

Prof. Michael A. Newton:  Boy, that's a $64,000 question. It didn't come up at all, that I'm aware of, in the entire campaign, nationally, in the United States. I think most Americans, if you asked them in the abstract, because of the long-standing American role in these systems. Remember, we stood up Sierra-Leon. We, the United States, helped stand up, in conjunction with the European Union, the currently functioning Kosovo Specialists Chambers, Nuremberg, the Yugoslavian Tribunal, the Rwanda Tribunal. And it was only in this system where we really got shunted to the side. And yet, at the same time, of course they would love American political support, and Americans. So it's a dicey issue.

 

      And that's why I'm slightly encouraged by the Independent Experts Report. Because it is a fair-minded, pretty hard hitting, hey, this is not Valhalla in the Hague. There are problems here.  Serious institutional problems. Serious management problems. Serious structural problems. 

 

      And that's why a new prosecutor, in conjunction with six new judges, in conjunction with a new president of the court, in conjunction with a new president of the new Assembly of States Parties, four big elections all at once. That's why I said this next two to three years is going to be, I think, emblematic of the direction that the court goes, longer term.

 

Prof. Jeremy A. Rabkin:  And it does seem there's genuine question about where the United States will go. At the beginning, it was President Clinton who said, no, we can't ratify this now and there has not been a presidential platform of either party since then in more than 20 years, saying yes, our party is committed to joining the ICC. That wasn't Obama. That wasn't Hillary Clinton. That wasn't John Kerry. Democrats haven't been too eager to get out front on this and say, we embrace the court.

 

Prof. Michael A. Newton:  Oh no. It's a very strong bipartisan consensus. And I will, let's look at our own laundry as well. The idea has always been, we have a functioning military justice system. We have the war crimes built into the Federal Criminal Code. We can do this ourselves. We have a developed system.

 

      What we want the court to do, I mean, I negotiated this stuff, so people would always look at me and say, this is for the Saddam Husseins of the word. What is the United States worried about? Well, a lot actually. And for good cause. Because you now convey a supernational power that, in fact, can be misused. And we've seen that.

 

      You know, we've seen cases brought against the president of Kenya that imploded completely for lack of evidence. And then of course, the finger-pointing starts. And the prosecution says, oh, no, no, that was because of tampering with witnesses. And the defense argument is to say, no, they were corrupted witnesses from the beginning. And you knew it from the beginning. And yet, you chose, because you wanted to go after the president of Kenya. You wanted a splash. So we've seen this judicial power be abused.

 

Prof. Jeremy A. Rabkin:  All right. Let's see, Nick, you got another caller? Some sexy area code out there.

 

Nick Marr:  We don't have any questions in the queue right now.

 

Prof. Jeremy A. Rabkin:  So Nick you should just tell us, don't feel bad about interrupting. I want to ask, got this opportunity, I've several times asked you what you expected in Washington. But let me turn the focus on European capitals. They are the ones paying for it. Do you see any indication that they might be losing patience in London, and Paris, and Berlin?

 

Prof. Michael A. Newton:  At the pragmatic level, absolutely. It's too slow. It's too expensive. It's not really --

 

Prof. Jeremy A. Rabkin:  Well, since they're not doing anything, right?

 

Prof. Michael A. Newton: Right. It's doing -- right, as I started to say, it's not really an enhancing the quest for justice writ large. But at the rhetorical level, not a whispering. And this is, to me, one of the unfortunate pieces of the sanctions was that it galvanized European governments, and other governments around the world to make these expressions of support. Which, you know --

 

Prof. Jeremy A. Rabkin:  Yes. They thought they had to show solidarity.

 

Prof. Michael A. Newton:  Exactly. So in a way, it's a false front of, we know there's problems. And what it does, in my mind is problematic, because it facilitates a continuing ignorance -- ability to ignore the real structural problems.

 

      And I want to say one more thing, while Jason thinks of another question, about the law of ward. Come back to Mike and what Mike Lewis would be real concerned about. The statute all over the place, uses terms of art drawn from the laws of war. All right. It'll say, unless such thing is justified by military necessity. Or, unless such thing as a military objective. Or it'll say, protection is derived from the laws of war. And that's why this stuff matters in the real world because you're drawing on state practice.

 

      You're drawing on what states actually do out in the real world as a tactical matter. And I can give you one example from Bemba, if you want. And then you're watching the court come along and change, structurally, the meaning of a military objective, which has ripple effects far beyond the court. And if nothing else, what it does is, it causes uncertainty at a staff planning level in a multinational operation. It causes people to say, wait a minute, time out. And in that way, fundamentally undermines the efficiency of military operations. It undermines staff planning. It undermines, in a larger sense, the technical ability to actually implement the laws of war.

 

Prof. Jeremy A. Rabkin:  I think your most serious point is that it makes it harder for NATO to actually operate as a joint military force.

 

Prof. Michael A. Newton:  Yes, indeed.

 

Prof. Jeremy A. Rabkin:  Because it divides us from our allies, the few of them who actually could commit forces to a conflict.

 

Prof. Michael A. Newton:  It does indeed. I'll give you one example. NATO, in the American Parlance, we call it OpCon, or Operational Control. The idea being that you'll sit at Fort Bragg and you may send an engineer unit, or an aviation unit, or an infantry brigade, or whatever, into a particular theater to work for a particular commander. That's called operational control. And you're surrendering day-to-day conduct of operations. Like, you've got nothing to do with what they do every day. And what they do, and where they go, and how they operate on a tactical level.

 

      But neither do you completely relinquish command, either. Like, if they need resupply, they need personnel, you still command them. So a lot of times, for example, when we deploy special operators, the punitive authority under the Uniform Code of Military Justice will go back to the sending commander, the home commander. They'll retain UCMJ purposes.

 

      In the Bemba case, the court said, when you deploy -- which NATO does this in Afghanistan every day, when you deploy a force to operate under the OpCon or the tactical control of another commander, if you don't completely sever command, then you're tactically responsible under the law of command responsibility for everything that force does or doesn't do. And you can see, if that had actually been the result of the Bemba trial, it would have splintered NATO. Not to mention, U.N. peacekeeping operations.

 

      Every U.N. peace operation does exactly the same thing. A country sends a contingent under the command of some other commander, typically from some other country. That's the kind of thing I'm talking about that would concern Mike. Because this is not theoretical. This is in the real world, and it has everything to do with the way we actually conduct operations. That's why it matters.

 

Prof. Jeremy A. Rabkin:  I mean --

 

Nick Marr:   This is Nick. I'll just jump in here and -- Professor sorry. I'll jump in here with a question we just got.

 

Caller 3:  Thank you very much for a really interesting discussion. My question is, do you think there is a parallel to what you’re describing as far as the changes in the word and the definitions, the way in which these prosecutions are taking place. Or the way they're trying to do it.

 

      Any parallels to what's presently happening in the U.S. with regard to police actions and how these bills to change policing sort of second guess what's going to happen on the street from the operation standpoint? And then, if that is true, do you see any sort of concurrent political philosophy behind, either at the international level, or here, on those two issues? Thank you.

 

Prof. Michael A. Newton:  That's an interesting question. I think what you're really getting at is empowering the right people to do the right thing. So the Attorney General has a prosecutorial decision to make based on grand jury testimony, based on what they do. When they do that in good faith, if we believe in the system, then we support that. If there's structural flaws that we can point to, then we correct those structural flaws. But we don't just say that they have no authority to make those decisions.

 

      And so part of what you're referring to, I think has been sort of the influence of police unions, and this dispute over what is good faith policing? And what does that look like on the ground? And where is the deference? That's the key word. Where is the deference? And how much deference over what issues?

 

      I just saw in, I guess, New York City waves of retirements because police feel like, I get no deference. I get no presumption whatsoever that I'm operating in good faith, and therefore, I'm going to retire. And it's exactly the same premise from the ICC and the Hague to domestic prosecutors. I mean, it's worth repeating, that in the Afghanistan situation, she has written that the United States did no investigations that mattered or counted for her purposes, and effectively did nothing.

 

      The word I used in my law article, law professor word, was supine. We were simply supine in accepting allegations of detainee mistreatment. Like we did nothing. We didn't care. Well, that's not true. It is not true in the real world. And yet, she can make it legally true simply by virtue of her filing. And if judges let her do that.

 

      So I think the same is in the police cases. You really do have to get at the actual facts. Not the facts as reported. Not the facts as blogged. But the actual facts. And then you have to make good faith decisions about what's appropriate based on those facts. And that's all. It's exactly the same, in that sense.

 

Prof. Jeremy A. Rabkin:  I think it's also exactly the same in that you can win a lot of partisan applause, or political applause, but getting out ahead of the facts and saying, I know that this fits my idea of what's happening. So the facts are not that important. There's a lot of temptation to be a little bit demagogic.

 

Prof. Michael A. Newton:  Oh, absolutely. And of course, in the ICC practice, you've seen that repeatedly. But it doesn't change the fact that what we do in a court of law is we look at actual evidence, and actual facts, and actual argumentation. And where judges -- this is why the elements are important, because it allows us to go back after the fact and say, you misconstrued that. You misapplied that. You ignored this. Because there's a template against which to measure these decision making.

 

Prof. Jeremy A. Rabkin:  Well, I have to say, you have invested a lot of your intellectual capital in thinking through these issues. So I very much defer to you and your presentation of this as something that could be rescued, which a lot of people are doubtful of. But I suppose we will see in the next two or three years, whether it takes a turn for the better.

 

      Prof. Michael A. Newton:  Well, I have to -- I mean let's be clear. Right now, in December, before Christmas, a new prosecutor, which will be the first one from an independent from external. Six new judges. That's a 33 percent turnover, which could fundamentally shape the court for good or ill. A new president of the court.

 

      And there's, in the Independent Experts Report, there's lots of allegations about the ways that court management has suffered in the present structure. So that stuff either gets addressed and fixed, or it compounds and gets worse. A new president of the Assembly of States parties. New recommendations, we think things like checks and balances, that's all at stake between now and Christmas.

 

      So I don't know that I said this expressly, but I really feel like we're at a tipping point. We're at, in the next couple of years, a real tipping point to determine what happens and how it happens, and how the court relates to state officials, and if it does just become overtly political across the board. Now Europeans would say that's not what they want. None of our NATO partners would say that's what they want. But in fact, that's a lot of what they've gotten. And the question is, the burden is on them to repair their court.

 

      And I'll go back to the John -- to the Grossman speech, which I worked on at the time. What we said was, we respect the right of our allies to join the court. That's your sovereign choice. We ask you, in turn, to respect our right not to. You know, you want to pay for it and have it, do it. Just don't do it in a way that politicizes it and comes after Americans and changes our structure.

 

      But by the same token, I think we have an affirmative duty to demonstrate that our system actually works. We don't need the court. Because our system works. And that gets back to some of these earlier questions. We've got to make our system work in an apolitical, impartial, efficient way that actually does justice. And if we do that, I don't think we have anything to be ashamed of. Have your court. But don't ask us to participate or fund it.

 

Prof. Jeremy A. Rabkin:  It's good for us to have moral confidence. And we may need a lot of it to defend ourselves from a court that’s trying to score points.

 

Prof. Michael A. Newton:  Well, we'll see. Time will tell.

 

Prof. Jeremy A. Rabkin:  Yes. Okay. Well, thank you very much. I think this was a very good discussion.

 

Prof. Michael A. Newton:  Okay. Thank all you who signed on to listen. I know this is a commitment of your time, and I don't take that for granted. And I appreciate Nick for his stewardship.

 

Prof. Jeremy A. Rabkin:  Thank you.

 

Nick Marr:  Great. Thank you very much and thank you both for the benefit of your valuable time and expertise today. Of course, to our listeners for calling in. And we remember Mike Lewis in this Teleforum episode. As always, we welcome your feedback by email at [email protected]. And be keeping an eye on your emails and on our website for announcements about upcoming Teleforum calls. But that's all for this afternoon. Thank you for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.