As atonement for criticizing the concept of a “Responsibility to Protect” (R2P) in my recent President’s column (see ASIL Newsletter, Vol. 23, Issue 3), I eagerly accepted an invitation by ASIL member and former Ambassador at Large for War Crimes Issues David Scheffer, to attend a fascinating conference on the intersection between R2P and the International Criminal Court (ICC) held in December at Northwestern University School of Law. I emerged from that event no more convinced than I was before that the political and moral R2P concept really has much to do with the hard law obligations ICC parties have. But I did learn quite a bit from the knowledgeable insiders present about why the U.S. government’s confrontational approach to the ICC is now regarded as defunct even by Bush Administration officials and why, no matter who becomes President in 2009, the U.S.-ICC relationship is likely to deepen.

As participants at the conference noted and as John P. Cerone has summarized in a recent article, the U.S. government’s position towards the ICC has evolved from a policy of “constructive engagement” (during the Clinton Administration), to “firm opposition” (beginning most clearly with its “de-signing” of the Court’s Statute in May 2002), to today’s stance of “pragmatic exploitation” (as exemplified by the Bush Administration’s decision to abstain on the UN Security Council’s March 2005 decision to refer the situation in Darfur to the ICC).[2]

There are many reasons why opposition has given way to pragmatism. The Bush Administration’s “war” on the ICC was led by then Under Secretary of State for Arms Control and International Security John Bolton, whose previous Senate testimony and public writings evinced a visceral distaste for the very idea of an international criminal court irrespective of design or functioning.[3] For Bolton and fellow travelers like Lee Casey, David Rivkin, and Jeremy Ribkin, the United States needed to undermine a kangaroo court that was inconsistent with U.S. constitutional standards (including its Bill of Rights), ineffective as deterrent, illegitimate given the absence of reliable, predicable, or consistent law, democratically unaccountable, and susceptible to corruption and politicization.[4] The risk that U.S. nationals who committed crimes abroad could be brought before such a rogue body, made more palpable by the increased U.S. military exposure around the world after 9/11, required, in their view, hostile measures. The results were Bolton’s de-signing of the Rome Statute, repeated U.S.-led efforts in the Security Council to shield UN peacekeepers from non-ICC party states from the ICC’s jurisdiction, a worldwide effort to negotiate bilateral agreements to limit the exposure of U.S. nationals (ostensibly authorized under the Rome Statute’s Article 98), and the passage of the American Service-member’s Protection Act (authorizing, among other things, the cut off of assistance to states that refuse to cooperate with the U.S.’s war on the Court). The U.S. position was clear: the ICC needed to be nipped in the bud and alternative forums fashioned to advance criminal accountability for international crimes.

By the time the U.S. came under severe pressure to drop its proposal for an ad hoc “Sudan Tribunal” to handle what it termed the “genocide” in Darfur, it was clear that the U.S. hostility towards the ICC was not achieving it purpose. Far from undermining the ICC, the Bolton-inspired policies appeared to enhance its credibility. Either because of U.S. actions or in spite of them, ratifications of the ICC Statute (particularly in Africa) exceeded expectations, Security Council efforts in favor of exceptionalism for UN peacekeepers became untenable, and, amidst growing resistance by the U.S. military to the counterproductive cut-offs of bilateral aid, Presidential waivers of those provisions of the Service-members’ Protection Act proliferated.

As Cerone indicates, in the wake of the U.S. acquiescence to referring Darfur to the ICC, statements concerning the ICC by State Department Legal Adviser John Bellinger, U.S. Assistant Secretary of State Jendayi Frazer, and even Secretary of State Condoleeza Rice were less hostile and even suggestive of a new U.S. readiness to cooperate, where appropriate, with the Court’s prosecutions (as in Darfur). As Bellinger put it, the U.S. now appeared to accept that the ICC “has a role to play in the overall system of international justice.”[5] At the outset of the U.S. presidential primaries, the public positions of no less than eight candidates (Biden, Clinton, Dodd, Edwards, Kucinich, McCain, Obama, and Richardson) suggested that pragmatism was part of an emerging Washington consensus, although only three of those candidates (Edwards, Kucinich, and Richardson) appeared to support immediate U.S. ratification of the ICC Statute.[6]

It is tempting to draw more general lessons from all of this. Perhaps it tells us something about the declining “soft” power of the United States, particularly with respect to institutions that some regard, rightly or wrongly, as multilateral counterweights to the abuse of unilateral military power. It may tell us something about the need to restore U.S. credibility with respect to the rule of law and human rights – particularly if the U.S. is trying to advance an alternative method for affirming both. It may say something about the relative effectiveness of confrontational rather than diplomatic approaches. Or perhaps the case of the ICC is unique, reflective only of the constitutive effects of a decade of successful efforts by the ICTY, ICTR, and a coalition of supportive NGOs to advance a single powerful idea.

It may be more fruitful, however, to consider what a “pragmatic” policy towards the ICC could look like in the future, apart from occasional future cooperation with particular ICC prosecutions or the repeal of the Service-members’ Protection Act. David Scheffer’s testimony before the Senate’s Judiciary Committee’s Subcommittee on Human Rights and the Law from November 14, 2007 suggests one way forward likely to draw bipartisan support. Scheffer focused on the need to revise U.S. law to better enable national prosecutions of ICC crimes. He urged Congress to enact three bills now at various stages of consideration on Capitol Hill – the Genocide Accountability Act (which was signed into law about a month after Scheffer’s testimony; for text see here ), the Child Soldiers Accountability Act, and the Trafficking in Persons Accountability Act. He suggested further that Congress apply consistent rules of jurisdiction to include all U.S. citizens, government contractors, and aliens present in the U.S.; amend Title 18 of the U.S. Code to enable the prosecution in U.S. courts of crimes against humanity and war crimes; and amend the Uniform Code of Military Justice to permit unambiguous prosecution for crimes against humanity and war crimes as defined in the ICC.[7] These actions would eliminate the U.S. as a safe haven for war criminals, demonstrate U.S. willingness to hold its own citizens criminally accountable, and, given the ICC’s complementarity regime, would reduce the likelihood that any U.S. national might be brought before the ICC. Moreover, assuming that many ICC party states have not undertaken all the necessary modifications of their own criminal codes to enable them to fulfill their duties under complementarity (as is typical with many multilateral treaties), undertaking the legislative actions that Scheffer recommends would make the United States, ironically, more compliant with international criminal law than many ICC parties, assuming the principal goal of the ICC is not to enhance its own jurisdiction but to enable more international criminals to be prosecuted.

At the Northwestern conference, there was little dissent from Scheffer’s proposals. Even those who remain opposed to the ICC – because of the unpredictable nature of its war crimes jurisprudence or because of lingering concerns over the absence of jury trials, for example – did not oppose national prosecutions of war criminals, including members of our military. Indeed, all agreed that particularly after the revelations of the past few years, the United States needs to expend considerable effort to convince the world that it continues to respect Geneva law – and that continued support for “U.S. exceptionalism” on this score reflects continued suspicion only of a particular forum but not of the need for criminal accountability. The only dissents heard at Northwestern came from those who argued that amendments to the Uniform Code of Military Justice were unnecessary since existing military law already permits prosecutions for the ICC’s enumerated war crimes. But the law has an expressive value that may make such changes more necessary than might appear at first glance. After credible evidence of maltreatment and even deaths of detainees while in U.S. custody, admissions of secret detention camps, and official acknowledgments of authorized “waterboarding,” it may well be time to go beyond the usual U.S. prosecutions for “conduct unbecoming” or “derelictions of duty” with penalties corresponding to such charges. It may be time to prosecute our own for what the world (and the ICC) regards and calls “war crimes,” making sure that U.S. penalties reflect the seriousness of such crimes. If we do that, the world would not care as much about whether we ratify the ICC, because we will have achieved its real goal.

José E. Alvarez

Footnotes