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U.S. Nudged Toward Closer Cooperation with ICC

Eli Clifton

WASHINGTON, May 12 2010 (IPS) - The upcoming review conference of the International Criminal Court (ICC) has restarted the debate here in Washington about how the U.S. should engage with the ICC despite ongoing concerns about the prosecutorial authority and jurisdiction afforded to the court.

According to a Council on Foreign Relations (CFR) report released earlier this week, the U.S. should become a “non-party partner” to the ICC and assist in investigations, apprehending suspects and prosecuting cases.

Vijay Padmanabhan, a visiting assistant professor of law at Yeshiva University and the author of the report, suggests that the ICC’s failure to define the “crime of aggression” – unprovoked military action by one state against another – is overly vague and could threaten U.S. interests.

But Padmanabhan calls on the U.S. to constructively contribute to the review conference and, if the conference is productive, increase its cooperation with the court.

Human Rights Watch issued a report on Monday calling on countries which are attending the review conference May 31 to Jun. 11 in Kampala, Uganda to increase the court’s ability to prosecute the most serious human rights violators.

“This is a moment for ICC members meeting in Kampala to send a message to perpetrators and would-be perpetrators that they will face justice,” said Richard Dicker, international justice director at Human Rights Watch. “Serious debate at the conference can make real progress for the victims of mass slaughter and use of rape as a weapon of war.”

The conference will focus on four themes of the court’s work: peace and justice, strengthening national courts, the ICC’s impact on affected communities, and state cooperation.

The conference is expected to address an expansion of ICC jurisdiction to include drug trafficking and terrorism.

Both “crimes of aggression” and a controversial member opt-out clause from statutes relating to war crimes may be examined at the conference and would represent some of the more challenging issues facing the ICC.

The administration of U.S. president Bill Clinton signed the treaty that established the ICC on Dec. 31, 2000, but the George W. Bush administration renounced the signature.

The Barack Obama administration has signalled that it would like to more actively cooperate with and support the ICC but has, so far, shown few indications of returning to the treaty.

HRW released a document in March which detailed eight initiatives the Obama administration should take on international justice.

They include “develop a constructive relationship with the ICC”; “assist investigations and prosecutions by the ICC”; and “signal opposition to the remaining provisions of the American Servicemembers Protection Act”.

The Servicemembers Protection Act was one of the more hostile policies taken by the Bush administration towards the ICC. It authorised the president to use all means necessary to free U.S. personnel detained by the ICC and banned U.S. participation in peacekeeping mission unless U.S. personnel were granted immunity from the ICC.

Unlike its predecessor, the Obama administration has taken steps to show that it supports the ICC’s mission.

The White House reversed the U.S.’s eight-year boycott of meetings of the ICC member states when it sent an observer to the member states meeting in November. It plans to send Harold Koh, legal advisor to the State Department, and Stephen Rapp, ambassador at large for war crimes issues, to the upcoming review conference in Kampala.

Still, the administration hasn’t gone as far as indicating that it will rejoin the ICC and neither CFR nor HRW called for an immediate U.S. rejoining of the ICC in their reports.

“I think it’s recognised that that’s not immediately in the cards,” Elise Keppler, International Justice Programme senior counsel at HRW, told IPS.

“What we have promoted in work we’ve issued to the administration is a call for increased cooperation with the court that would eventually lead to ratification. [This would include] cooperating on cases where appropriate, attending ICC meetings, attending the review conference and involving the U.S. in constructive discussions at those meetings along with disassociating itself with the purported unsigning of the Rome statute during the Bush administration,” she continued.

HRW called on the ICC to promote joint efforts to improve national-level prosecutions and trials of ICC crimes.

The ICC only acts when national courts are unable to hold credible trials and greater involvement of national courts could help in the prosecution of international criminals without increasing the jurisdiction of the ICC.

“The ICC is meant to be a court of last resort,” said Dicker. “Advancing the fight against impunity means not only strengthening the ICC, but also bringing justice to the national level according to internationally agreed standards.”

Padmanabhan, in his report for CFR, detailed the numerous obstacles to the U.S. returning to the ICC, but acknowledged the importance of U.S. cooperation with the court and support of its mission.

“The United States has security and moral interests in ensuring that those responsible for atrocity crimes be held accountable, and the ICC can be an important tool to achieve these goals. With so many states now party to the ICC, the reality is that the ICC will be the presumptive forum for future international trials,” he wrote.