There is some risk that Palestine’s ascension to the International Criminal Court will result in political backlash in Washington regarding the United States’ policy of constructive engagement with the Court, as David Kaye and David Bosco have both noted. There are two important reasons why such backlash would be a mistake.
First, although the U.S. moved from a hostile stance to a more cooperative approach toward the Court during the second half of the Bush administration, a stance that was continued throughout the Obama administration, actual U.S. support remains circumscribed and strategically directed. The American Servicemembers’ Protection Act (ASPA) severely limits any cooperation with the ICC. Due in part to that piece of legislation, the U.S. Government provides no financial support to the Court, does not as a matter of course provide any evidence or investigative support to the Court, and does not allow any investigative activities to take place on U.S. soil. The so-called “Dodd Amendment” to ASPA does allow the US to provide assistance to international efforts to bring to justice high-level foreign nationals accused of genocide, war crimes or crimes against humanity, but this exception remains narrow. Assistance will be provided only in cases where there is no risk of investigation or prosecution of U.S. personnel, and only after careful consideration by an interagency process including the State Department, Defense Department, Justice Department and White House.
Don’t get me wrong. It would be a mistake to think that the U.S. has not found ways to engage constructively with the ICC. It has. Then State Department Legal Advisor Harold Koh reviewed some of the forms of U.S. engagement in a 2012 speech:
First, from the beginning of this administration we have dropped the hostile rhetoric….
Second, we have begun to engage with the Assembly of States Parties (ASP) and the Court…. We now regularly attend meetings of the ASP as an “observer” and we participated constructively at the Review Conference in Kampala…. And we have also actively engaged with the Office of the Prosecutor and the Registry to consider specific ways that we can support specific prosecutions already underway in all of the situations currently before the Court, including through cooperation on witness protection issues, and we have responded positively to a number of requests.
Third, we have publicly urged cooperation and expressed support for the Court’s work in all of the ongoing situations in which the Court has begun formal investigations or prosecutions, both in our diplomacy and in multilateral settings….
Fourth, we continue to find it a serious cause for concern that nine individuals who are the subject of existing ICC arrest warrants have not yet been apprehended…. In the UN Security Council, Ambassador Susan Rice and other senior diplomats have repeatedly called for Sudan to cooperate with the ICC and for States to oppose invitations, facilitation, or support for travel by those subject to existing arrest warrants.
Fifth, on a related front, we have noted that States can lend expertise and logistical assistance to apprehend current ICC fugitives.
In addition, as Beth Van Schaack wrote in her post yesterday, the administration in 2013 persuaded Congress to amend the United States’ War Crimes Reward Program to include ICC indictees.
An impressive list yes, but the cooperation described is either largely rhetorical (dropping hostile language, engaging in discussions and meetings, calling on others to act) or narrowly focused (strategic referrals, limited assistance in particular cases, rewards for arrests of indictees). So while it is true that the U.S. under Bush and Obama have engaged constructively with the ICC in pursuit of U.S. interests, it is also important to keep the degree of this support in perspective.
Second, regarding the option of the U.S. pulling back from its constructive engagement with the Court, we’ve seen that movie before. It flopped. As has been frequently noted, the Bush administration initially adopted an oppositional stance to the ICC but that approach was quickly seen, even within the Bush administration itself, to be counterproductive and was abandoned in the latter years of that administration. U.S. hostility to the Court undermined our relations with important allies and deprived the U.S. of a useful foreign policy tool. With respect to Sudan, the U.S. acceded to a UN Security Council referral to the ICC because it recognized that it had few other options to attempt to achieve accountability for the crimes being committed in Darfur. As then State Department Legal Advisor John Bellinger said in a speech in 2008, a cooperative relationship with the ICC ultimately serves U.S. (and ICC) interests better than a hostile one:
… there are also realities about the ICC that the United States must accept. Anyone who thought that the ICC could or should be prevented from coming to existence must acknowledge that the ICC is a reality and will remain so for the foreseeable future. Similarly, the United States must acknowledge that the ICC enjoys a large body of international support, and that many countries will look to the ICC as the preferred mechanism for addressing serious crimes that cannot be addressed at the national level. In addition, the United States must also recognize that, in some cases such as Darfur, the ICC’s success in investigating and prosecuting serious crimes may advance goals we share, and that in such cases we may have an interest in facilitating the ICC’s work.
My key point is that ICC supporters and the United States have more to gain by focusing on our shared values and commitment to advancing the cause of international justice than by trying to persuade each other to change our views about the ICC.
These words remain true today. Despite concerns about how Palestine’s ascension to the Court might play out in the future, it would be extremely imprudent and ultimately counterproductive for the U.S. to step back now from the stance of cooperative engagement developed during the Bush years and continued throughout the Obama administration.