Commentary

The International Criminal Court: Time for a US Reassessment

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By Victoria Holt – As the US presidential campaign heats up, both political parties advocate new courses. On issues from the Iraq war to climate change, candidates are calling for change and a restoration of the US position in the world. One issue ripe for reassessment is the International Criminal Court (ICC), which is designed to prosecute those who commit the most egregious crimes against humanity, genocide and war crimes.

The ICC last made national headlines in the US a decade ago during the Clinton Administration – before 9/11, the Iraq War and the atrocities in Sudan – when the 1998 Rome Statute was negotiated to set the terms of the future Court. The US withheld its support for the Statute until Clinton’s last day in office. President Bush immediately repudiated even tentative US support for the Court and rejected any suggestion that Congress consider the issue. There were fiery words about the ICC again in 2002, when the Bush Administration reacted to the Court’s establishment after countries ratified the Rome Statute. The US demanded “immunity” for its personnel serving in United Nations operations and dispatched State Department officials to negotiate with nations to prevent their sending Americans to The Hague. In short, the US told the public it wanted nothing to do with the Court.

Since then, there has been little public discourse about the Court. What debate exists often gets mired in old arguments about the US joining the Court. That framework, however, is badly out of date. As Americans look forward to a new President, there are three good reasons to re-assess and modernize the US relationship with the functioning, not theoretical, Court.

First, the Court has taken on numerous cases that line up with US interests, such as in Sudan, northern Uganda and the Democratic Republic of the Congo. Strong bipartisan support for US action against genocide in Darfur has thawed Administration and Congressional opposition to the Court. President Bush signed the Darfur Peace and Accountability Act in 2006, which urged that the US “render assistance to the efforts of the International Criminal Court (ICC) to bring to justice persons accused of genocide, war crimes, or crimes against humanity in Darfur, Sudan,” provided that the US receive assurances that no US national would be subject to the Court in connection with such an effort. In late 2006, the State Department legal advisor argued that “At least as a matter of policy, not only do we not oppose the ICC’s investigation and prosecutions in Sudan but we support its investigation and prosecution of those atrocities.”[1]

Likewise, Congressional critics have shifted. Senator John McCain (R-AR) and former Senator Bob Dole (R-KS) urged the US to use its satellites and intelligence assets “to record any atrocities that occur in Darfur so that future prosecutions can take place.” Further, they urged that, “We should publicly remind Khartoum that the International Criminal Court has jurisdiction to prosecute war crimes in Darfur.”[2]

Second, the US could be more directly impacted by the Court’s next steps. The Court has so far turned down cases referring to the United States. In 2006, ICC Prosecutor Luis Moreno Ocampo rejected claims against the US and its Coalition partners in Iraq, articulating why he would not pursue alleged war crimes there.

Yet as the ICC develops, the crimes within its jurisdiction and other issues will be reviewed. In July 2009, UN Secretary-General Ban Ki Moon is slated to convene a conference of states parties to the Rome Statute, which may address important questions such as the definition of “aggression,” a controversial issue that could influence future Court judgments about US actions in Iraq and Afghanistan. The US could shape these developments if it went as an observer to the 2009 conference. To date, however, the US has not participated in the preparatory meetings leading to the review process, nor signaled a willingness to participate in the review.

Third, in reassessing the Court’s role, the United States should address the past concerns that led to a domestic divide over the Court. Key to this approach is consulting with those in the US military, who traditionally have been seen as strongly opposed to the Court.

Within the military, there remains deep concern about US personnel being brought before the ICC for politically-motivated charges of international war crimes. With the US military campaigns in Iraq and Afghanistan, apprehension about the vulnerability of US soldiers remains high. The US should address these questions and understand any legal gaps within the ICC’s legal concept of complementarity, its jurisdiction, and the behavior allowed for within US legal codes and the US Uniform Code of Military Justice. Where there are gaps in US law or its interpretation, they should be filled; where the Court has no jurisdiction, that should be better understood.

While fears and substantive issues may remain, they would be better weighed against what the US may gain by successful prosecution of atrocity crimes in places such as Sudan and by participation in designing the Court’s jurisdiction as it moves ahead. The US might also reexamine the national security implications of its opposition. Military leaders, for example, have testified to Congress that efforts to condition US foreign military assistance on promises of immunity for American citizens from the ICC raise hurdles to military cooperation with foreign governments. Likewise, Congressional leaders and human rights experts should be asked for their understanding of how effectively the Court is faring in pursuing international atrocity crimes and what challenges it raises for US interests.

These steps could help the next US President move beyond the old join/do not join US debate about the Court. The US could then develop a modern relationship with the ICC that may help it in ending impunity for some of the world’s worst criminals, a goal Americans deeply share.

 

[1]International Herald Tribune, “Four years later, U.S. sees International Criminal Court in better light,” 27 December 2006.

[2] John McCain and Robert Dole, “Rescue Darfur Now,” The Washington Post, 10 September 2006.

 

Photo: The ICC judges exit the Hall of Knights in The Hague following their swearing-in and the inauguration of the Court. (Credit: ICC-CPI)

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