The Evolving US Policy Towards the ICC

by Caitlin Lambert, Law and Policy

“[W]hen the most grave and serious crimes are committed and there is no will or capacity to prosecute at the national level, most of the countries in the world have decided, and the United States accepts, that this justice will be delivered in the International Criminal Court.” – Stephen J. Rapp, US Ambassador-at-Large for War Crimes

Since the International Criminal Court’s (ICC) inception, the U.S. government’s main concern has been shielding American citizens from the Court’s jurisdiction. This concern has seemingly overcome the historic trend of American support for international criminal law, and has left U.S. groups in favor of the ICC deeply disappointed. The United States has long promoted the rule of law and the active development of a robust international criminal law; the United States was actively involved in establishing the international military tribunals at Nuremberg and Japan, and the present day ad hoc tribunals for Rwanda and the former Yugoslavia. Although the U.S. government also joined the voices advocating between 1995 and 2000 for a permanent international tribunal, the U.S.-ICC relationship has been turbulent largely due to the concern of shielding American citizens from the Court’s jurisdiction.

The Clinton Administration signed the 1998 Rome Treaty, which established the ICC, before he left office—but the Bush Administration effectively “unsigned” the treaty and adopted a hostile stance towards the Court throughout most of the Bush presidency. The single most aggressive act of the Bush Administration towards the ICC was signing the American Servicemembers’ Protection Act (ASPA) into law on August 2, 2002. The overriding purpose of the ASPA was to inhibit the U.S. government from supporting the ICC—and it did, by inter alia completely cutting off any ability for the United States to fund the ICC.

Among other things, the ASPA also required the United States to enter into agreements with all ICC signatory states to shield American citizens abroad from ICC jurisdiction, under the auspices of Article 98 of the Rome Statute. Article 98 prohibits the ICC from prosecuting individuals located on the territory of an ICC member state, where such action by the Court would cause the member state to violate the terms of any other bilateral or multilateral treaty to which it is a party. This provision of the Rome Statute respects Status of Forces agreements (SOFAs) and Status of Mission agreements (SOMAs), long in use throughout the world. SOFAs generally protect only U.S. military personnel from foreign prosecution, and are premised upon the U.S. Armed Forces being invited into the foreign country.

By contrast, the Bush Administration aggressively pursued a strategy of Bilateral Immunity Agreements (BIAs), which guarantee immunity from ICC prosecution for all American citizens in the country with which the agreement is concluded. Under the original ASPA, nations who refused to conclude BIAs with the United States were subject to sanctions, including the loss of military aid (though these provisions have since been repealed). Unlike SOFAs, BIAs are the creation of anti-ICC sentiment in Congress. And though the ASPA set a tone of the hostility toward the Court that has been difficult to shake, but the Obama Administration has begun to reorient the U.S. government as a supporter of the ICC in significant ways.

In Obama’s first term, his administration embraced a cautious, case-by-case approach to supporting the ICC. Stopping short of a comprehensive policy for cooperation with the Court, the administration has stated that supporting the current cases before the ICC is in the U.S. national interest. Former Secretary of State Hillary Clinton stated early in Obama’s first term that “whether we work toward joining or not, we will end hostility toward the ICC, and look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to justice.”

In recent years, the United States has taken a number of concrete steps to demonstrate its increasing support for the Court. Beginning in 2009, the United States has participated as an Observer in the Assembly of States Parties, sending a sizeable and high-ranking delegation each year. In its role as a permanent member on the UN Security Council, the Obama Administration supported the referral of the situation in Libya to the ICC in 2011—a subtle yet stark contract with Bush Administration’s approach of abstaining from vetoing the referral of the situation in Darfur in 2005. Under Obama, the United States has also supported the ICC indirectly by sharing intelligence on fugitives and providing other substantial in-kind support. Most recently, the Obama Administration was successful in expanding the War Crimes Rewards Program to offer rewards of up to $5 million for information leading to the arrest, transfer, or conviction of wanted war criminals, including ICC indictees Joseph Kony, Dominic Ongwen, Okot Odhiambo, Bosco Ntaganda, and Sylvestre Mudacumura.

The Obama Administration has also implemented its responsibilities under the ASPA less aggressively than the Bush Administration. For example, on January 31, 2014, the Obama Administration announced an Article 98 agreement with Mali, where the United States was sending troops to participate in a United Nations stabilization mission. It was initially unclear whether the United States had entered into a BIA or a SOFA with Mali. On February 21, however, it came to light that the basis of this Article 98 agreement was a preexisting SOFA: Obama had not demanded that Mali sign a BIA before deploying U.S. troops as part of the peacekeeping operation there. This gentler approach encouraged American ICC supporters who briefly feared a return to the Bush-era, BIA-dominated aggressiveness toward the Court.

Despite Obama’s policy of positive engagement, however, the ASPA continues to limit how much the U.S. government can support the ICC in real ways. As noted before, there have been amendments to the ASPA sections limiting military aid to ICC states parties who refuse to sign BIAs, but the most restrictive sections of the ASPA are still law. For instance, the ASPA explicitly prohibits U.S. cooperation with the ICC, including appropriating any funds to assist the Court.

While the Obama administration has taken greater advantage of some of the discretionary powers under the ASPA to support the ICC than President Bush chose to, the legislation still functionally undermines the United States’ relationship with the Court: the President does not have the power to waive the funding prohibition, and the overall state of US-ICC relations remains at the mercy of the President’s personal opinion of the Court. What’s more, keeping the ASPA on the books sends a clear message to the international community that the U.S. government continues to be ultimately suspicious of, and hostile to, the ICC.

Although there has not yet been a concerted push to repeal the ASPA, there are signs of increasing support for the ICC even in Congress. For example, the Sudan Peace, Security, and Accountability Act of 2013—with its more than 100 co-sponsors—proposes sanctions against those who fail to execute an ICC arrest warrant against any Government of Sudan official. And Congressional support is not just limited to the situation in Sudan. Senate Resolution 219, currently in committee, calls for Bashar al-Assad and others to be tried before the ICC for crimes committed in Syria. House Resolution 229, referred to committee, also calls for the ICC to try Assad. What’s more, on March 20, 2013, the Senate welcomed by simple resolution the unanimous vote by the UN Security Council to refer the situation in Libya to the ICC. Although neither the Sudan Peace, Security, and Accountability Act, nor the above resolutions have the force of law as of yet, they are indicative of the changing attitude of Congress towards the ICC from one of hostility to acceptance.

The question now is whether the United States is ready to take a more comprehensive approach to altering its relationship with the Court. Have the Obama Administration’s policy of positive engagement and the changing attitudes in Congress built the political will necessary for the U.S. government to ratify the Rome Statute or repeal the ASPA? It seems clear that U.S. ratification of the Rome Treaty is still a pipedream, though one that must be pursued. Repealing the ASPA, however, may soon be achievable. The Obama Administration’s relationship with the ICC is increasingly supportive—and Congress appears to be following the administration’s lead. The recent expansion of the War Crimes Reward Program demonstrates that both the administration and Congress take seriously the prosecution of genocide, war crimes, and crimes against humanity. The natural next step for the U.S. government is to repeal the ASPA and develop a comprehensive policy towards the ICC. In doing so, the United States will not only be building a positive relationship with a single institution, but also starting to rebuild its reputation as a leader in international human rights.

Photo credit: Stephen Rapp, by UN-Photo – Evan-Schneider

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