U.S.: Washington Urged to Seek 'Positive Engagement' With ICC

• by Jim Lobe* (washington)
• Friday, March 27, 2009
• Inter Press Service

In a report released here Friday, the task force, which was sponsored by the American Society of International Law (ASIL), also called for Congress to review a controversial 2002 law and repeal or amend provisions that make cooperation with the ICC in its investigation and prosecution of cases more difficult.

While it did not recommend that the U.S. join the ICC in the immediate future, the group, which was co-chaired by former Deputy Secretary of Defence, William Taft, and a federal appellate court judge who served on the International Criminal Tribunal for the Former Yugoslavia, Judge Patricia Wald, urged that the administration of President Barack Obama consider joining after the Review Conference.

'We hope unanimously that both the administration and the Congress will see cooperation with the court will be in the best interests of the United States,' said Mickey Edwards, a former conservative Republican congressman, who participated in the task force.

The 70-page report, which was adopted unanimously by task force members, was released as the Obama administration is conducting a high-level review of its policy toward the ICC, which recently made the headlines when it issued an arrest warrant for Sudanese President Omar al-Bashir for war crimes allegedly committed in connection with his government's counter-insurgency campaign in Darfur.

It also comes in the same week as Obama officially nominated former Assistant Secretary for Human Rights and Yale Law School Dean Harold Hongju Koh, who has been an outspoken advocate for the ICC, to become the State Department's chief legal adviser, a key position in the review process.

The report, entitled 'U.S. Policy Toward the International Criminal Court: Further Positive Engagement,' could also weigh heavily in any review of Washington's relations with the ICC due primarily to the composition of its membership.

In addition to Edwards, Wald, and Taft, who has served under a number of Republican administration - most recently as former Secretary of State Colin Powell's legal adviser - other members included the former Supreme Court Justice Sandra Day O'Connor, the former president of the International Court of Justice, Stephen Schwebel, and Ruth Wedgwood, a neo-conservative legal scholar at Johns Hopkins School of Advanced International Studies who is widely known for her scepticism of multilateral institutions.

The ICC, whose mandate is to investigate and prosecute war crimes, crimes against humanity, genocide, and similar atrocities, was created under the 1998 Rome Statute, an international treaty which has been ratified by some 108 countries, including all members of the European Union (EU), and signed by more than 140. The court itself began operations at The Hague in 2002.

As one of his last acts in office, President Bill Clinton signed the treaty in 2000. But, in a May 2002 letter to the United Nations, the administration of President George W. Bush renounced Clinton's signature and launched a major campaign against the ICC on the grounds that, given Washington's global military predominance and 'unique responsibilities' for maintaining international peace, its soldiers and officials would be particularly vulnerable to 'politically-inspired prosecutions' by the new court.

The campaign consisted not only of a public declaration of non-cooperation with the ICC, but also a diplomatic drive, directed by then-Undersecretary of State for Arms Control and International Security John Bolton, to pressure developing countries into signing so-called 'Article 98' bilateral immunity agreements (BIA) with Washington under which they pledged never to transfer U.S. citizens on their territory to the ICC's jurisdiction.

That effort was supplemented in the Republican-led Congress by passage of the American Service-Members' Protection Act (ASPA) which denied military and certain kinds of economic assistance to those countries that refused to sign a BIA. Among other provisions, ASPA authorised U.S. military action to free any U.S. citizens from ICC custody.

Although Bush himself repeatedly denounced the ICC during his 2004 re-election campaign, his administration gradually eased its stance toward the court during his second term, as neo-conservatives and other right-wing hawks lost influence.

By 2006, it had waived most of the ASPA's prohibitions on economic and military aid for Protocol member states and had even quietly begun cooperating with ICC investigations into massive human rights abuses in Darfur and elsewhere in east Africa.

'There was a kind of de facto change in the administration's attitude toward the court beginning around 2005,' Wald said. 'However, our stated policy (remained) the 2002 letter,' she added, calling on the Obama administration to enunciate a new official policy of cooperation and support for 'the object and purpose of the Rome Statute.'

'We can be reassured that those people who believed that the court would pursue a political (agenda) over international justice...were wrong,' said Edwards.

The task force also recommended that the administration review the ways by which Washington can support key ICC investigations, including cooperating in the arrest of fugitive defendants, providing diplomatic support, and sharing information; redefining and narrowing the scope of the BIAs to ensure they are consistent with the letter and spirit of the Rome Statute; and participating as an observer in the 2010 Review Conference which, among other things, will address the definition of the crime of aggression - 'a question that inevitably implicate U.S. interests.'

In addition, the task force called for the administration to advise Congress on needed changes to ASPA and for Congress to undertake its own review of the legislation, as well as filling gaps in existing U.S. domestic law to ensure that crimes that would otherwise fall under the ICC's jurisdiction could be prosecuted in U.S. courts.

Under the Rome Statute, the ICC must defer to the jurisdiction of national courts unless the latter prove either unwilling or unable to prosecute mass atrocities of the kind that fall under the ICC's jurisdiction.

There is little doubt that an official revision of Washington's policy toward the ICC would yield diplomatic benefits, particularly in Europe, where the 2002 renunciation of Clinton's signature was strongly denounced as an important indication, along with Bush's withdrawal from the Kyoto Protocol to reduce greenhouse gas emissions, of U.S. unilateralism and contempt for global opinion.

In addition, Bolton's anti-ICC campaign was widely resented, especially in Africa, Latin America and the Caribbean where a disproportionate number of countries came under strong pressure to sign BIAs and subsequently lost millions of dollars in assistance if they did not do so.

*Jim Lobe's blog on U.S. foreign policy can be read at http://www.ips.org/blog/jimlobe/.

© Inter Press Service (2009) — All Rights ReservedOriginal source: Inter Press Service