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US Should Pursue Cautious Cooperation With International Criminal Court

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Brett Schaefer and Steven Groves [Fellows, The Heritage Foundation ]: "The comments by US Ambassador-at-Large for War Crimes Issues Stephen Rapp yesterday are a welcome confirmation of the concerns held by many Americans regarding the potential for overreach by the International Criminal Court and its prosecutor. As Ambassador Rapp cautioned, there is a strong possibility that US military and political officials could be unfairly prosecuted by the ICC because of the breadth of US political and military interests. Indeed, the ICC has opened an investigation into alleged war crimes in Afghanistan that could very easily involve American citizens and soldiers given America's leadership role in both the military operations and the political transition. This situation and Rapp's valid concern underscore the need to preserve and expand America's network of bilateral Article 98 agreements in which countries agree not to surrender US persons to the ICC without US permission.

Ambassador Rapp's caution is especially welcome considering some comments by Obama administration officials indicating that the administration was greatly interested in expanding US ties and cooperation with the ICC, possibly to include seeking ratification of the Rome Statute. That said, Ambassador Rapp's statement that no US President is likely to submit the Rome Statute to the Senate for advice and consent in the "foreseeable future" is hardly surprising. President Clinton expressed grave concerns regarding the treaty and refused to submit the Statute to the Senate knowing that he did not have the 67 votes necessary for ratification. Although support in the Senate may be higher now than in 2000, there is little indication that President Obama has the votes to clear that threshold.

But there is a world of space between ratification and current US policy. The summary of the Ambassador's remarks included a statement that the "US should continue to support the work of international criminal tribunals." Does that mean that the Obama administration will seek to enhance US cooperation with the ICC? The answer remains unclear.

We think that they still wish to do so. But to what extent and under what circumstances? Will they seek to weaken legislative constraints on US cooperation with the ICC? Will they seek to "resign" the Rome Statute? Will they seek changes to the Rome Statute in the upcoming review conference in Uganda to alleviate US concerns? If so, what specific changes will they pursue? All of these questions remain unanswered.

If the US is not seeking ratification, we think changes to US policy toward the ICC are unnecessary. Indeed, the Bush administration was willing and able to support a Security Council resolution referring the situation in Darfur to the ICC. Nothing prevents such "a la carte" cooperation with the ICC in the future. However, the US should continue to seek changes to the Rome Statute and the Court's rules and regulations with the intent of alleviating US concerns. The US owes its military and officials what protections and peace of mind it can provide."

Brett D. Schaefer is the Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is the Bernard and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at the Heritage Foundation.

First appeared in The Jurist

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