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
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).
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. 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.
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
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.” 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.
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. 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.
John P. Cerone, “Dynamic Equilibrium: The Evolution of US
Attitudes toward International Criminal Courts and Tribunals,” 18
EJIL 277 (2007).
See Cerone, id., at 292; John Bolton, “The Risks and Weaknesses of
the International Criminal Court from America’s Perspective,” 64
Law & Contemp. Prob. 167 (2001).
See, e.g., Lee Casey, “Assessments of the United States Position: The
Case against the International Criminal Court,” 25 Fordham Int’l L. J.
840 (2002); Lee Casey and David Rivkin, “The Limits of Legitimacy:
The Rome Statute’s Unlawful Application to Non-State Parties,” 44
Va. J. Int’l L. 63 (2003); Jeremy Rabkin, “Global Criminal Justice: An
Idea Whose Time Has Passed,” 38 Cornell Int’l L. J. 753 (2005).
See above link for PDF of Scheffer’s testimony, David Scheffer, “Gaps
in U.S. Law Pertaining to Atrocity Crimes.” See also David
Scheffer, Richard Cooper, Juliette Voinov Kohler, “The End of
Exceptionalism in War Crimes,” forthcoming in Harv. Int’l L. Rev.