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[ICC@10] IJCentral 4th of July special feature: The US and the ICC Today

by John Washburn on 03 Jul 2012 | Comments

Where the US stands on the ICC today

The United States and the International Criminal Court now have an effective working relationship. The United States sends to ICC meetings large observer delegations. They represent all interested offices and participate vigorously in the sessions. This participation advances U.S. foreign policy objectives such as the rule of law, encouragement of democracy and improved governance.

The delegations sponsor side events and meetings to round up governments’ support for ICC assistance to domestic court systems by including their officials, experts and prosecutors in the Court’s activities in a country and through training in The Hague. The delegation to the Review Conference at Kampala in June, 2010 was vigorously active in the negotiations on the crime of aggression. It was well satisfied with the result.

The Court’s Office of the Prosecutor and the United States now have continuing and close working relations. The U.S. provides information, materials, suggestions and analyses as well as regular contacts in person through established channels. Its representatives also meet regularly with other senior officials of the ICC in their frequent visits to Washington and in The Hague.

There is no formal US policy on the ICC, but accumulated speeches and references in official documents provide the outline of an established approach in practice. These say that United States conduct of its relations with the Court is based on individual cases which it considers to be in the national interest. However, there appears to be no case not in the national interest. Moreover, the U.S. in practice promotes the use of the Court in certain situations by stimulating and voting for Security Council resolutions referring cases, such as Libya, to the Court. The United States is now actively pushing such a resolution on Syria.

The road to US ratification of the Rome Statute

Taken together, the totality, extent and continuity of these interchanges amount to a general, overall US-ICC relationship. The task now of American civil society is to work constantly to advance the thickening and activation of this relationship directly and by achieving a formal U.S. policy on the ICC and a standing interagency group to implement it. The final goal of this effort is American ratification of the Court’s Rome Statute when the politics finally are right.

There are several steps along the way. The U.S. can restore the legal effect of the US signature of the Statute that the Bush II administration deactivated. It can pare down or repeal the egregious American Servicemembers Protection Act. Although most of its obstacles to direct US relations with the ICC can be avoided by waivers, it does absolutely prohibit cash payments to the Court. It can use the policy and mandate of the newly established Atrocities Prevention Board to further enhance the status of the Court in the United States and make a start toward a
formal U.S. policy for the ICC.

Conservatives and the Court

An interesting and promising sign in Congress is that very conservative legislators in both chambers are beginning in some numbers to sponsor or co-sponsor resolutions and bills urging the administration to further action on situations in which the Court is involved such as Joseph Kony and the Lord’s Resistance Army, the Ivory Coast and Sudan. All of these refer to the ICC and some of them directly acknowledge its role. Staffs of these legislators have told us that their principals are not troubled by these references, although they would not support declarations of general U.S. support for the ICC. Still, at least in particular situations, for these conservative Senators and Representatives the Court has gone from an anathema to an option.

This development may give a glimpse of how a Romney administration might approach the Court which might well be guided and encouraged by it. That administration probably would therefore not regress to the virulent hostility to the Court of the early Bush II Administration. Instead, it is likely to take its cue from the change in attitude at the end of that administration which permitted its abstention on the Security Council referral of Sudan to the ICC. We might therefore see not a break in the relationship, but rather a reduction in its pace and scope and smaller and less active delegations, at least for a time. It would continue to collaborate on cases especially important to national interests and offering the most painless way to take action or at least the appearance of it.

In Washington, among the public and in the sector of the foreign policy establishment outside government, it is now very generally recognized that the ICC is a permanent reality. U.S. civil society must keep working on that recognition until our country joins the Court.

John Washburn is Convener of the American NGO Coalition for the International Criminal Court (AMICC). However this post contains his personal views and should not be taken as representing the positions and opinions of AMICC, its members, alliances or persons associated with it.