JURIST Contributing Editor David Crane of Syracuse College of Law and Guest Columnist Leila Sadat of the Washington University in St. Louis School of Law say that after the failure of American legislative and diplomatic initiatives opposing the International Criminal Court, the time has come for the US to support and cooperate with the ICC...
The ICC’s progress from a start-up international court in 2002 to a fully functioning court today, conducting four wide-ranging investigations of atrocities in African countries that would otherwise escape scrutiny, might seem like something that the US would naturally support. After all, this country was founded on the rule of law, and the US has played a central role in the creation of every international court from Nuremberg through the ad hoc tribunals for the former Yugoslavia, Rwanda and Sierra Leone. Opinion polls, moreover, have consistently shown that a clear majority of Americans support the ICC.
Since the ICC’s creation, however, US policy toward the ICC has been driven by hysteria and misinformation. Wild-eyed opponents of the Court predicted that the ICC would be an anti-American monster, and before the Court ever had a chance to do anything, Congress enacted anti-ICC legislation and the Bush administration launched a global diplomatic campaign against the ICC. During President Bush’s second term, when it became apparent that the ICC was a responsible judicial institution, some of the more heated anti-ICC rhetoric faded away, and US policy gradually evolved in the direction of less overt hostility and even quiet cooperation at times, although the anti-ICC policy remained unchanged throughout.
Since President Obama took office, there has been no formal change in policy as of yet, thus the US remains on the outside looking in. There are, however, signs of a thaw. Secretary of State Clinton said on her recent trip to Africa that it was her “great regret” that the US was not an ICC member. And in March 2009, following the ICC’s arrest warrant for Sudan’s President, the US Permanent Representative to the United Nations, Ambassador Susan E. Rice, stated that “[t]he United States supports the International Criminal Court’s actions to hold accountable those responsible for the heinous crimes in Darfur”
The time has come for the US to support and cooperate with the ICC. The legislative and diplomatic initiatives against the ICC have failed and have only served to isolate the US, as more and more countries join the ICC (the Czech Republic recently became the 110th member of the ICC). There is added urgency for US participation due to the ICC Review Conference to be held next year in Uganda. This meeting’s purpose is to take stock in the progress of the court, and evaluate mechanisms to help the Court function more efficiently. A major agenda item is settling on a workable definition of the crime of aggression, whether the ICC should exercise jurisdiction over the crime of aggression particularly what will trigger that jurisdiction over this inherently political crime.
US membership in the ICC is a long-term goal of many of us in the United States, but we recognize that ratification of the Rome Statute is highly unlikely for the foreseeable future. The time is right, though, for a new ICC policy embracing the following elements:
First, no more empty chairs: taking part in ICC meetings should be an obvious step. The US may participate as a nonvoting observer in the intergovernmental meetings of the ICC. Other countries that have not ratified the Rome Statute, such as Russia and Israel, attend and participate.
Second, the US should continue to support the ICC’s investigations and operations by sharing intelligence and providing resources. The US has repeatedly called upon other countries to provide support for the ICC’s Darfur investigations and prosecutions.
Finally, engaging with the ICC will require the US to repeal or amend the harmful anti-ICC legislation that remains on the books. Appropriate legislation should begin as soon as an ICC policy is in place.
Americans are justly proud of this country’s commitment to the rule of law and to basic principles of justice. The past several years has brought that commitment into question by the world community. We must reclaim this heritage by rejecting the anti-ICC policies of recent years and embracing a new spirit of cooperation and support for this new and exciting institution. The principles the US helped draft at Nuremberg demand it.
The Section for International Law of the American Bar Association (ABA) and the ABA writ large have both been long term advocates of better support to the ICC. The Section for International Law has formed a blue-ribbon task force to assist the Assembly of States Parties and the new US administration in developing a dialog as the ASP begins to prepare for the Plenary Session in Kampala, Uganda in the late spring of 2010. The goal of this task force is to ensure that the US has an ability to work with the ASP on the key issues that the Plenary Session will consider next year and to develop mechanisms for communication, building mutual trust and respect. As members of that task force our hope is to see an engaged American diplomat sitting at the table in Kampala. The time is right to move forward together in seeking justice around the world for victims of atrocity.
David M. Crane is a Professor at Syracuse University College of Law and former founding Chief Prosecutor of the international war crimes tribunal in West Africa called the Special Court for Sierra Leone, 2002-2005. Leila Sadat is Henry H. Oberschelp Professor of Law and Director of the Harris World Law Institute at the Washington University in St. Louis School of Law.
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why oppose ICC ?
politically motivated
US deploys its soldiers around the world
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what US is trying to do are:
UN Security Council Filter - the council is empowered to veto to prosecute a case before ICC
criticism - politicize , ICC is supposed to be judicial
bilateral treaty with ICC parties - you do not turn over US military or civilian (--> ? is it considered as reservation which is not allowed in ICC regime?)
not much point in the efforts to kill the ICC. only leading US to be isolated. for example, Afghan is ICC party. US personnel committed a crime regulated by Rome statute in Afghan territory. then ICC has jurisdiction over the US personnel.
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A (Partially) Dissenting View on the US “Observing” the ICC Review Conference
Posted: 20 Nov 2009 10:54 PM PST
by Kevin Jon Heller
When I critique the US’s refusal to join the ICC in my international criminal law class, I make sure to emphasize not only that the US has traditionally played a very positive role in ICL — from Nuremberg to the SCSL — but also that the Rome Statute would be considerably worse but for the input of the American representatives at PrepCom and the Rome Conference. Like many others, therefore, I am encouraged by the US’s recent decision to observe the Review Conference in 2010. I don’t expect the US to join the ICC in the near future (if ever). But increased US engagement with the Court can have significant benefits for both parties.
That said, it is important to emphasize that the US’s new “Observer” status is not without its drawbacks. The US has not abandoned its basic objections to the ICC — the independent prosecutor, automatic jurisdiction over crimes committed on the territory of a State Party, no formal Security Council control over the ICC’s docket, etc. — despite the fact that they are non-starters for the Assembly of States Parties (ASP). Insofar as it renews its objections at the Review Conference, therefore, US participation threatens to delay, and perhaps actually impede, negotiations.
Indeed, the US is already up to its old tricks. Consider what Stephen Rapp, the US Ambassador at Large for War Crimes Issues, had to say about the crime of aggression in his recent address to the ASP — his only substantive comment:
Having been absent from previous rounds of these meetings, much of what we will do here is listen and learn. Our presence at this meeting, and the contacts that our delegates will seek with as many of you as possible, reflects our interest in gaining a better understanding of the issues being considered here and the workings of the Court.
That said, I would be remiss not to share with you my country’s concerns about an issue pending before this body to which we attach particular importance: the definition of the crime of aggression, which is to be addressed at the Review Conference in Kampala next year. The United States has well-known views on the crime of aggression, which reflect the specific role and responsibilities entrusted to the Security Council by the UN Charter in responding to aggression or its threat, as well as concerns about the way the draft definition itself has been framed. Our view has been and remains that, should the Rome Statute be amended to include a defined crime of aggression, jurisdiction should follow a Security Council determination that aggression has occurred.
Although we respect the hard work that has been done in this area by the Assembly of States Parties, we also share the concern that many of you have expressed about the need to address this issue, above all, with extreme care, and the Court itself has an interest in not being drawn into a political thicket that could threaten its perceived impartiality.
The irony of this statement is difficult to miss: the US’s idea of a “non-political” definition of the crime of aggression is one in which the US has complete control over the ICC’s ability to prosecute the crime by virtue of its permanent veto. That is an unacceptable position, one that echoes the US’s original demand that the ICC not have jurisdiction over any situation that the Security Council had on its agenda. And it is particularly unacceptable given that, as Rapp admits, the US has not participated in the ASP’s seven years of negotiations over the crime of aggression. It is still not clear what the jurisdictional trigger of the crime will look like — options range from the ICC being able to initiate a prosecution of its own accord to requiring the ICJ to determine that an act of aggression has occurred — but it is clear that it will not look like what the US wants. Any US involvement in the negotiations, therefore, can only be counterproductive.
I’m delighted that the US has taken Observer status. But we should not kid ourselves — if the US does more than observe, its participation may well threaten the work of the Review Conference.
