International Order & Conflict

On Trial: The US Military and the International Criminal Court

in Program

A new report by FOPO co-director Victoria K. Holt and Elisabeth Dallas argues that the US needs to engage with the International Criminal Court to protect the interests of its military service members.

After a year-long review of US military concerns regarding the Court, Stimson found high anxiety but little understanding among military personnel about how the ICC works and whether they could be investigated for their actions in the line of duty. Military experts and lawyers who were more familiar with the Court felt less apprehension. They expressed concern, however, that the current US posture did not allow the US to support its own interests with the Court. A clear consensus emerged: The US needs to move from studied distancing to constructive engagement with the Court.

Concerns over the ICC’s potential impact on US military personnel were central to the US decision not to join the Court. Nearly four years since the Court’s establishment in 2002, Stimson’s study, On Trial: The US Military and the International Criminal Court, examines American military interests today as the ICC takes on its first cases investigating atrocities in Sudan, Uganda and the Democratic Republic of Congo. Based on interviews with military personnel, authors Victoria Holt and Elisabeth Dallas identify ways to address their concerns, including:

  • Reduce anxiety of US military personnel by clarifying how adherence to US laws does or does not make them vulnerable to the Court’s reach. Enhance troop confidence by educating personnel on what the Court is designed to do and how it operates;
  • Engage in international meetings leading to the Court’s review conference in 2009, to participate in any new definitions of crimes and processes for the Court;
  • Re-evaluate US policies designed to protect service members that many find harmful to US security interests, such as limits on the International Military Education and Training program for countries not concluding bilateral agreements with the US over the ICC;
  • Strengthen US jurisdiction further by closing any gaps between US law and crimes within the Court’s jurisdiction; and
  • Consider case-by-case support to the Court where the US has a strong interest, such as in the case of Sudan.

Holt and Dallas met with retired and active US military personnel from each service, representing both senior and junior ranks, with military and international legal scholars and former Bush and Clinton Administration officials. The project was designed to move past the older debate over whether to oppose or join the Court, and to identify current thinking within military circles and common interests—if not agreements—among experts and non-experts, critics and advocates of the Court. This project was supported by a generous grant from the John D. and Catherine T. MacArthur Foundation.


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