US Takes Cautious Steps Towards ICC

Doug Lamborn, a Republican congressman, introduced a bill to the House of Representatives on April 21, aimed at preventing the US from participating in the upcoming ICC review conference, which will take place in Kampala at the beginning of June.

Although the bill may never be passed – it must first be reviewed by committee before being the subject of a general debate – Lamborn’s initiative, which has the backing of a number of other congressmen, points to a growing sense of discomfort within America that the country is being dragged down the ICC route.

In April, one of the country’s most influential foreign policy think-tanks, the Council of Foreign Relations, published a report in which it recommended the US not seek to join the ICC in the foreseeable future.

With the mid-term elections due to take place in November, the White House will find it hard to ignore such lobbying.

UNEASY RELATIONSHIP

The US has had an uneasy relationship with the ICC from its inception. Although it initially supported the idea of an international mechanism to prosecute war crimes, Washington ultimately withdrew support when it became clear it would not be able to wield its United Nations Security Council veto over possible cases.

Nonetheless, at the end of 2000, Bill Clinton, then US president, signed the Rome Statute, the founding treaty of the ICC, believing that this would allow the country to have a greater degree of influence on the development of the court.

But Clinton’s successor, George Bush, took a more hostile position towards the court. Not only did the Bush administration suspend Clinton’s signature, but it also negotiated agreements with more than 100 countries, aimed at preventing the surrender of US personnel to the ICC.

Since assuming the US presidency at the start of 2008, Barack Obama has fostered a policy of cautious engagement with the court.

Last November, the US participated for the first time in the annual meeting of ICC member states, the Assembly of States Parties, ASP. It also announced that it would send a delegation to the ICC review conference in Kampala, which seemed to signal a departure from the policy of previous administrations.

Although the ICC has welcomed the thawing of relations with the US, it remains to be seen the extent to which such engagement will turn into active cooperation with the court.

The ICC has made it clear that it would like the US to cooperate with future investigations, by sharing information and surrendering suspects that may be living within its borders.

This may signal a new era of cooperation. Although Washington remains unwilling to sign up to the ICC for the time being, the conviction that its goals are broadly in line with those of the ICC could lead to greater collaboration in future cases.

CRIMES OF AGGRESION

But one of the main obstacles to closer cooperation is the controversy around crimes of aggression – one of the main items on the agenda of the Kampala review conference. At issue is whether the ICC should prosecute such offences.

The Rome Statute says that the ICC should do so, but since member states have not been able to agree on a definition, the ICC's mandate does not extend to prosecuting the crime for the time being.

The ASP has now drafted a definition for crimes of aggression, which it hopes can be adopted in Kampala. Under the terms of the definition, political leaders could be held accountable for directing the use of armed force against another state in contravention of the UN charter.

But divisions remain over the question of when the ICC can exercise its jurisdiction over crimes of aggression, and whether it needs a referral by the Security Council in order to do so, which some member states fear could politicise the process.

Many people in Washington are alarmed at the agreed definition, not least because certain action recently undertaken by the US – including the 2003 invasion of Iraq – could come under the new definition.

Brett Schaefer, a former Pentagon official who worked on ICC policy at  between 2003 and 2004, explained, “Here you have a fundamental disagreement over the legality of the war in Iraq. In the US, the war was deemed lawful and the officers fulfilled their responsibility in line with this law. But there is a very real danger that the ICC would take the opposite view and proceed with indictments against US citizens.”

John Bolton, former under-secretary of state in the Bush administration, and one of the most vocal opponents of the ICC, said, “Fundamentally, the Rome Statute takes an enormously important executive power and puts it into an international institution that is outside the control of any democratic process.”

Boltonis unconvinced that the caveats the ICC has in place to ensure impartiality of the court are adequate – namely the oversight of ICC member states and the principle of complementarity, whereby the court only acts when the judiciary of a member state is unable or unwilling to prosecute suspects.

“I would argue that any body controlled by a hundred-odd countries isn't controlled by anybody,” Bolton said.

Faced with such negativity towards the court, the White House knows that it must proceed with measured caution in any future cooperation with the court.

Although the US only has observer status at the Kampala conference – and therefore cannot vote – Stephen Rapp, the US ambassador for war crimes who will lead the US delegation, is hopeful that Washington can better influence the ICC by engaging with the court rather than remaining outside discussions.

Sources close to the US delegtaion say that this will be done through informal meetings on the sidelines of the conference, rather than by taking a strong position during negotiations.

However, Rapp told IWPR that there is “not going to be all that much opportunity to change the definition [of crimes of aggression], now that it has been agreed [by the ASP].”

US delegation sources say the best outcome for Washington would be for crimes of aggression to be dropped from the review conference altogether, which would make closer ties easier to sell to the American public.

But John Washburn, the convener for the American NGO Coalition for the ICC, AMICC, is urging the US to participate in a spirit of cooperation and not try to prevent consensus being reached.

“I'm not worried if the US tries to make its concerns known and to work with other like-minded countries on the question of [ICC] jurisdiction,” Washburn said. “However, I will be concerned if it tries to reopen negotiations on the agreed definition of [crimes of] aggression. If it did so, then it will suffer very serious consequences in the form of resentment [from other ICC member states].”

Rapp says that the US is not about to disrupt negotiations, and promises that involvement in the conference will be limited.

“As an observer, it is not up to us to impose our views on other delegates,” he said. “Instead, we will be getting people to reflect on the consequences of introducing crimes of aggression, and urging caution.”

Rapp's main concern, and one that he will convey to other delegates at the conference, is that the ICC should show that it can successfully deal with the cases that it currently has on its plate, before being given additional powers.

“It is very challenging to try war criminals, and many of those indicted by the ICC have not even been arrested yet,” he said. “The ICC must get this right first, and demonstrate effectiveness in dealing with atrocities, before walking into an area that is even more political and controversial.”

One thing in the US's favour is that the Kampala conference is no longer just about crimes of aggression, as had been the original intention. It will also consider such diverse topics as the court's handling of victims, its outreach programme and international support of domestic legal systems.

“It is now much more likely that, after spending a day or two on [crimes of] aggression, the participants in the review conference will consider it a time-waster and move on,” Washburn said. “This means that the US can gain a lot of goodwill by being serious about other issues that the country feels less strongly about.”

GOING FORWARDS

Beatrice Le Frapper, who heads the ICC's Complementarity and Cooperation Division, welcomed the US participation at the Kampala gathering.

“For us it’s very important to have the US in Kampala because the US has been a very strong advocate [of international courts],” she told IWPR.

She referred to recent comments made by Johnny Carson, the Africa Director of the US State Department, which called on Sudan's president, Omar al-Bashir, to appear in The Hague to answer charges before him.

Le Frapper noted that US cooperation could be particularly useful when it comes to making arrests of indictees.

“We know they could assist countries on a bilateral basis – for instance, to provide logistical and other forms of assistance in the DRC and Uganda,” she said. “Obviously those countries need support to assist in the arrest of Joseph Kony and Bosco Ntaganda.”

Le Frapper also said that the US could help by allowing the ICC to interview victims of alleged atrocities who now reside - often as refugees - within its borders. The ICC prosecutor’s office has been invited by the US to present such requests.

While the US has signaled its willingness to work with the ICC in helping to bring war crimes suspects to justice, some suggest that this does not represent a sea-change in policy towards the court.

“The United States has provided strong and steadfast support for ad-hoc tribunals since the 1990s, and we hope that our experience could be of some value to the ICC, particularly in identifying ways to enhance effective cooperation when it comes to ensuring those who are now the subject of an arrest warrant are brought before the bar of justice,” Rapp, the US ambassador for war crimes, recently told a meeting of Assembly of State Parties in New York.

But John Bellinger, who was a legal adviser to Bush when he held office, said it would be wrong to read too much into the positive noises being made by the Obama administration.

“It is a small step forward, following on from the engagement that began in the second term of the Bush administration,” he said. “What has changed is that State Parties are now more comfortable with bilateral cooperation than they were with the Bush administration.”

Blake Evans-Pritchard is IWPR's Africa Editor. Simon Jennings is an IWPR reporter in The Hague.